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Full text of "North Carolina Register v.7 no. 16 (11/16/1992)"

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The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 




EXECUTIVE ORDERS 

IN ADDITION 

Final Decision Letters 

PROPOSED RULES 

Cosmetic Art Examiners 

Environment, Health, and Natural Resources 

Human Resources 

Insurance 

Public Education 

Transportation 



LIST OF RULES CODIFIED 
RRC OBJECTIONS 



RECEIVED 

MOV 20 1992 
LAW LIBRARY 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: November 16, 1992 



Volume 7 • Issue 16 • Pages 1641-1720 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINTSTRATIVE CODR 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



TTie North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 276 11 -7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 1 SOB -2 1.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



TTie following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a heartng); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the stamtory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
heartng and at least 30 days must elapse before the agency can take 
action on the proposed rule, An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearmgs (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION 


CONTACT 


Office 


of 


Administrative Hearings, 


ATTN: Ru 


es 


Division, 


P.O. 


Drawer TlAAl, Raleigh, North Carolina 


27611-7447, 


(919) 


733-2678. 











NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 179-181 

II. IN ADDITION 

Final Decision Letters 



1641 



1644 



III. PROPOSED RULES 
Environment, Health, and 

Natural Resources 

Wildlife Resources Commission 1658 

Human Resources 

Facility Services 1647 

Medical Assistance 1649 

Insurance 

Medical Database Commission . . 1650 
Licensing Board 

Cosmetic Art Examiners 1669 

Public Education 

Elementary and Secondary 1666 

Transportation 

Highways, Division of 1669 

IV. LIST OF RULES 

CODIFIED 1671 

V. RRC OBJECTIONS 1684 

VI. RULES INVALIDATED BY 

JUDICIAL DECISION 1688 

VII. CONTESTED CASE DECISIONS 

Index to AU Decisions 1689 

Text of Selected Decisions 
92 EHR 0303 1705 

VIII. CUMULATIVE INDEX 1718 



NORTH CAROLENA REGISTER 

Publication Schedule 

(August 1992 - December 1993) 







Last Day 


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for Elec- 


Date for 


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* Earliest 


Issue 


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tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


:>< >i: si< :i< si: ^ ;?; 


><H<^=i<H<^^ 


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:i; :i; :!i«:i: sj< sj: si; 


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'^ TJie "Earliest Effective Date" is computed assuming tliat the agenc\' follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar nwnth. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NfUMBER 179 
COORDINATING COMMITTEE ON THE 
AMERICANS WITH DISABILITIES ACT 

WHEREAS, the Americans with Disabilities Act 
("ADA") was enacted by the United States Con- 
gress on July 26, 1990 to expand the civil rights of 
individuals with disabilities in the areas of employ- 
ment, transportation, public accommodations and 
communications; and 

WHEREAS, the primary objective of the ADA 
is to require employers and public service provid- 
ers to eliminate barriers, practices, or policies that 
may deprive individuals with disabilities of the full 
use and enjoyment of public buildings, employ- 
ment, transportation, accommodations, and com- 
munications; and 

WHEREAS, it is anticipated that the process of 
removing such barriers would best be effectuated 
by developing a comprehensive statewide process; 

NOW, THEREFORE, by the authority vested 
in me by the Constitution and laws of North 
Carolina, IT IS ORDERED: 



(b) informing and advising state agencies 
about their obligations under the ADA 
such as self evaluations, job task analy- 
ses, procedures to handle requests for 
accommodations, facility and communi- 
cations accessibility, transportation, and 
deadlines for action; 

(c) facilitating the adoption and publication 
of formal and informal grievance proce- 
dures within each agency to promptly 
and equitably resolve complaints of 
agency noncompliance with the ADA; 
with particular emphasis on the use of 
alternative means of dispute resolution, 
including settlement negotiations, con- 
ciliation, facilitation. mediation, 
factfinding, minitrials, and arbitration, 
as appropriate and authorized by law; 

(d) supervising the implementation and 
periodic revision of an ADA Transition 
Plan for each agency regarding the 
removal of environmental and commu- 
nication barriers in state facilities, 
whether owned or leased; 



Section 1. ESTABLISHMENT 

There is hereby established the Coordinating 
Committee on the ADA. 

Section 2. PURPOSE 

The Committee shall bring representatives from 
every state agency together to coordinate each 
agency's self-evaluation and compliance planning 
under ADA. 

Each agency shall develop and implement forth- 
with its ADA Compliance Plan. Individuals with 
disabilities must have full access to public build- 
ings, employment, transportation, accommoda- 
tions, and communications as soon as possible. 

Section 3. DUTIES 

The Committee shall be responsible for the 
following: 

(a) coordinating agency compliance with 
the ADA as it relates to other federal 
and state laws and regulations affecting 
individuals with disabilities; 



(e) providing a forum for speakers to in- 
form the Committee and others in state 
government about developments con- 
cerning acceptable accommodations, 
cost/effectiveness data for equipment 
and transportation alternatives, hiring 
practices and caselaw; and 

(f) ensuring that its decisions and those of 
its member agencies in creating their 
ADA Compliance Plans are made with 
the input of representatives of organiza- 
tions which serve disabled persons. 

Section 4. MEMBERSHIP 

The following individuals or their designees shall 
serve as members of the Committee; 

(1) Lieutenant Governor 

(2) Secretary of State 

(3) Attorney General 

(4) State Treasurer 

(5) Superintendent of Public Instruction 

(6) Commissioner of Insurance 

(7) Commissioner of Agriculture 

(8) Commissioner of Labor 

(9) State Auditor 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1641 



EXECUTIVE ORDERS 



(10) President Pro Tempore of the Senate 

(11) Speaker of the House of Representa- 
tives 

(12) Chief Justice of the Supreme Court 

(13) President of the University of North 
Carolina System 

(14) President of the System of Community 
Colleges 

(15) Secretary of Economic and Community 
Development 

(16) Secretary of Environment, Health and 
Natural Resources 

(17) Secretary of Crime Control and Public 
Safety 

(18) Secretary of Cultural Resources 

(19) Secretary of Human Resources 

(20) Secretary of Transportation 

(21) Secretary of Correction 

(22) Secretary of Administration 

(23) Secretary of Revenue 

(24) Director of the Office of State Person- 



Section 5. CHAIRPERSON 



receive necessary travel and subsistence expenses 
in accordance with the provisions of N.C.G.S. 
120-3.1 or 138-5. 

The Department of Administration shall provide 
administrative and staff support services required 
by the Coordinating Committee. While no one 
from the Governor's Advocacy Council for Per- 
sons with Disabilities shall be a member of the 
Committee, the GACPD shall support the 
Committee's work with technical assistance and as 
an information clearinghouse. 

Section 10. EFFECTIVE DATE 

This Executive Order shall be effective immedi- 
ately. 

Done this the 22nd day of October, 1992. 

EXECUTIVE ORDER NUMBER 180 

TRANSFERRING THE GOVERNOR'S 

EXTRADITION SECRETARY TO 

THE DEPARTMENT OF JUSTICE 



The Chairperson shall be the Deputy Secretary 
for Programs in the Department of Administration, 
who shall serve at the Governor's pleasure. The 
Chairperson may designate smaller subcommittees, 
divided according to expertise, to work on perti- 
nent topics and report to the full Committee. 

Section 6. MEETINGS 

The Committee shall meet not less than quarterly 
at the call of the chairperson. 

Section 7. QUORUM 



HAVING found that the duties of the Governor's 
Extradition Secretary, now located in the Office of 
the Governor, can be more economically, efficient- 
ly and effectively performed by that office being 
removed from the Office of the Governor and 
transferred to and relocated in the Department of 
Justice under the supervision of the Attorney 
General; 

THEREFORE, pursuant to the authority and 
powers given by Article III, Section 5(10) of the 
Constitution and North Carolina General Statutes 
I43A-8 and I43B-12, IT IS ORDERED: 



A simple majority of the members present shall 
constitute a quorum for the purpose of conducting 
business. 

A vote will require a simple majority of the 
members of the Committee. 

Section 8. ANNUAL REPORT 



Section 1. The Governor's Extradition Secre- 
tary, now located in the Office of the Governor, is 
hereby removed from and transferred to and 
relocated in the Department of Justice. 

Section 2. Reports of the transfer shall be made 
as required by N.C.G.S. 143B-I2(b). My Chief 
of Staff is directed to do the same. 



The Committee shall prepare a report to the 
Governor on or before October I, 1993 and 
annually thereafter. 

Section 9. ADMINISTRATION 

Members of the Coordinating Committee shall 



Section 3. This Order shall become effective 
immediately. 

Done in Charlotte, North Carolina, this the 27th 
day of October, 1992. 



1642 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 181 
AMENDING EXECUTIVE ORDER 

NUMBER 178 
WAIVING CERTAIN PENALTIES 

PURSUANT TO 
CHAPTER 166 A OF THE GENERAL 
STATUTES OF NORTH CAROLINA 



By the authority vested in me as Governor by the 
Constitution and laws of North Carolina, IT IS 
ORDERED: 

Executive Order Number 178 is hereby amended 
as follows: 

Section 4 of said Executive Order is hereby 
deleted in its entirety and the following language 
substituted therefor. 

Section 4. 

This Order shall not be in effect on bridges 
posted pursuant to N.C.G.S. 136-72. 

This Executive Order shall become effective 
immediately. 

Done in Raleigh, this the 27th day of October, 
1992. 



7:16 NORTH CAROLINA REGISTER November 16, 1992 1643 



IN ADDITION 



G.S. 120-30. 9H. effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change affecting 
voting " under Section 5 of the Voting Rights Act of 1965 he published in the North Carolina Register . 



U.S. Department of Justice 

Civil Rights Division 

JRD:MAP:NT:lrj Voting Section 

DJ 166-012-3 P.O. Box 66128 

92-3491 Washington, D.C. 20035-6128 

September 28, 1992 

DeWitt F. McCarley, Esq. 

City Attorney 

P. O. Box 7207 

Greenville, North Carolina 27825-7207 

Dear Mr. McCarley: 

This refers to the procedures for conducting the November 3, 1992, special bond election for the City 
of Greenville in Pitt County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the 
Voting Rights Act of 1965, as amended. 42 LI.S.C. 1973c. We received your submission on July 31. 1992. 

The Attorney General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 
C.F.R. 51.41). 



Sincerely, 

John R. Dunne 

Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



1644 7:16 NORTH CAROLINA REGISTER November 16, 1992 



IN ADDITION 



JRD:MAP:TGL:gmh 
DJ 166-012-3 

92-3776 



U.S. Department of Justice 

Civil Rights Division 

Voting Section 
P.O. Box 66128 
Washington, D.C. 20035-612^ 



October 15, 1992 

Mr. Alex K. Brock 

Executive Secretary-Director 

State Board of Elections 

P. O. Box 1166 

Raleigh. North Carolina 27602-1166 

Dear Mr. Brock: 

This refers to Chapter 927 (1992) . which specifies procedures for the establishment of voting 
precincts; Chapter 933 ( 1992) , which allows for absentee voting in a municipal incorporation referendum; 
Chapter 973 ( 1992) , which concerns voter registrar qualifications; Chapter 1032 (1992) , which changes the 
registration deadline for elections, enables a county board of elections to establish special satellite voting 
places for elderly or disabled voters, and amends the campaign financing law; Chapter 1044 (1992) , which 
establishes a system of voter registration by mail and mandates a system of voter registration at Division of 
Motor Vehicles Offices in the State of North Carolina, submitted to the Attorney General pursuant to Section 
5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on August 
19, 1992. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement 
of the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

We note that the provisions of Chapter 927 , with regard to the alteration of precinct boundaries, and 
Chapter 1032 , with regard to the establishment of satellite voting places, are considered to be enabling. 
Accordingly, local jurisdictions covered by Section 5 are not relieved of their responsibility of obtaining 
Section 5 preclearance for changes adopted pursuant to these provisions. 28 C.F.R. 51.15. 

Sincerely, 

John R. Dunne 

Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1645 



IN ADDITION 



U.S. Department of Justice 

Civil Rights Division 

JRD:GS:CGM:lrj Voting Section 

DJ 166-012-3 P.O. Box 66128 

92-3846 Washington, D.C. 20035-6128 

October 22, 1992 

George A. Weaver, Esq. 

Lee, Reece & Weaver 

P. O. Box 2047 

Wilson, North Carolina 27894-2047 

Dear Mr. Weaver: 

This refers to the change in the method of absentee voting for the November 3, 1992, general election 
to the E-Z Vote Absentee System in Wilson County, North Carolina, submitted to the Attorney General 
pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your 
submission on August 25, 1992. 

The Attorney General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 
C.F.R. 51.41). 



Sincerely, 

John R. Dunne 

Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



1646 7:16 NORTH CAROLINA REGISTER November 16, 1992 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

Jylotice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Facility Services 
intends to amend rules cited as 10 NCAC 3R 
.2113 and .2115. 

1 he proposed effective date of this action is 
February 1. 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on December 18, 1992 at the Council Build- 
ing, Room 201. 701 Barbour Drive, Raleigh, NC 
27603. 

Iveason for Proposed Action: To amend the CON 
rules to be consistent with the actions taken by the 
NC State Health Coordinating Council in the 
development of the rules for the 1993 SMFP. 

(comment Procedures: Written comments should 
be submitted to Jackie Sheppard, 701 Barbour 
Drive, Raleigh, North Carolina 27603, by Decem- 
ber 16, 1992. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF 
NEED REGULATIONS 

SECTION .2100 - CRITERIA AND 

STANDARDS FOR AMBULATORY 

SURGICAL SERVICES 

.2113 DEFINITIONS 

The following definitions will apply to all rules 
in this Section: 

(1) "Ambulatory surgical case" means an 
individual who receives one or more 
ambulatory surgical procedures in an 
ambulatory surgical operating room 
during a single operative encounter. 

(2) "Ambulatory surgical services" means 
those surgical services provided to pa- 
tients as part of an ambulatory surgical 
program within a licensed ambulatory 
surgical facility or a general acute care 
hospital licensed under G. S. Chapter 
I31E, Article 5, Part A. 

(3) "Ambulatory surgical facility" means a 



facility as defined in G.S. 131E-176(1). 

(4) "Ambulatory surgical program" means a 
program as defined in G.S. 13IE- 
176(la). 

(5) "Ambulatory surgical procedure" means 
a surgical procedure performed in a 
surgical operating room which requires 
local, regional or general anesthesia and 
a period of post-operative observation of 
less than 24 hours. Ambulatory surgical 
procedures exclude those procedures 
which are generally performed more than 
50 percent of the time in a physician's 
office. 

(6) "Ambulatory surgical operating room" 
means a dedicated or shared operating 
room in a licensed ambulatory surgical 
facility, or a general acute care hospital 
licensed under G.S. 1 3 1 E, Article 5, Part 
A, that is fully equipped to perform 
surgical procedures and is constructed to 
meet the specifications and standards, 
including fire and life safety code re- 
quirements, appropriate to the type of 
facility as utilized by the Construction 
Section of the Division of Facility Servic- 
es. Ambulatory surgical operating rooms 
exclude operating rooms dedicated for the 
performance of inpatient surgical proce- 
dures, cast rooms, procedures rooms that 
do not meet operating room specifica- 
tions, suture rooms, YAG laser rooms, 
and cystoscopy and endoscopy procedure 
rooms that do not meet the specifications 
of an operating room. 

(7) "Existing ambulatory surgical operating 
rooms" mean only the ambulatory surgi- 
cal operating rooms in ambulatory surgi- 
cal facilities and hospitals reported on the 
License Application for Ambulatory 
Surgical Facilities and Programs and Part 
III of Hospital Licensure Renewal Appli- 
cation Form submitted to the Licensure 
Section of the Division of Facility Servic- 
es and licensed and certified prior to the 
beginning of the review period. 

(8) "Approved ambulatory surgical operating 
rooms" mean only the ambulatory surgi- 
cal operating rooms that have been ap- 
proved for a certificate of need by the 
Certificate of Need Section prior to date 
on which the applicant's proposed project 
was submitted to the Agency but have not 
been licensed and certified, and ambula- 
tory surgical operating rooms which the 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1647 



PROPOSED RULES 



Certificate of Need Section determined 
were not subject to certificate of need 
review and are under construction prior 
to the date the applicant's proposal was 
submitted to the Agency. 

(9) "Dedicated ambulatory surgical operating 
room" means an ambulatory surgical 
operating room used solely for the per- 
formance of ambulatory surgical proce- 
dures. 

(10) "Shared surgical operating room" means 
an ambulatory surgical operating room 
that is used for the performance of both 
ambulatory and inpatient surgical proce- 
dures. 

(11) "Specialty area" means an area of medi- 
cal practice in which there is an approved 
medical specialty certificate issued by a 
member board of the American Board of 
Medical Specialties and includes, but is 
not limited to. the following: gynecology, 
otolaryngology, plastic surgery, general 
surgery, ophthalmology , urology, ortho- 
pedics, and oral surgery. 

(12) "Practical utilization" is &A 43 surgical 
cases per day for a dedicated ambulatory 
surgical operating room and 4t^ 3^ 
surgical cases per day for a shared surgi- 
cal operating room. Practical utilization 
for Academic Medical Center Teaching 
Hospitals will be determined on a case 
by ease ba s i s . 

(13) "Service area" means an area within 20 
to 4 road miles of the ambulatory surgi 
cal facility, a single or multi-county area 
as designated in 10 NCAC 3R .3020. 

Statutory Authority G.S. 131E-177. 

.2115 NEED FOR SERVICES 

(a) In projecting utilization for existing, ap- 
proved, and proposed ambulatory surgical pro- 
grams, a program shall be considered to be open 
five days per week and 52 weeks a year. 

(b) A proposal to establish a new ambulatory 
surgical facility or increase the number of ambula- 
tory surgical operating rooms in an existing ambu- 
latory surgical facility or hospital shall not be 
approved unless the applicant documents that the 
average number of ambulatory surgical cases per 
ambulatory surgical operating room in the 
applicant's proposed ambulatory surgical program 
are projected to be at practical utilization during 
the fourth quaner of the third year of operation 
following completion of the project. 



{ej — An applicant shall document the need for a 
new ambulatory surgical facility or an increase in 
the number of ambulatory surgical operating rooms 
by demonstrating that the number of existing and 
approved ambulator^' surgical operating rooms in 
the proposed service area is not sufficient to meet 
the projected need for ambulatory surgical services 
in the proposed service area; or. alternatix'cly, that 
the proposed project i s needed because access to 
ambulatory — surgical — services — by — the — medically 
underserved residents of the proposed service area 
is restricted by the charges for the ambulatory 
s urgical serx'ices or the admissions polices of the 
existing or approved ambulatory surgical programs 
in the proposed scrx'ice area. 

Hj To demonstrate that the — number of 

existing — and — approved ambulatory 

s urgical operating rooms in the pro 

posed service area is not sufficient to 

meet the projected need for ambulatory 

surgical services in the proposed ser 

vice area, the applicant shall document: 

fA) — that each existing ambulatory surgery 

program — that — performs — ambulatory 

surgery in the same specialty area is 

currently at 80 percent or more of 

practical utilization and is projected to 

be at practical utilization prior to the 

completion of the proposed project, 

{Bj — that each approved ambulatory sur - 
gery program that performs ambulato 
ry surgery in the same specialty area 
is projected to be at practical utiliza 
tion prior to the completion of the 
proposed project, and 
■fG^ — all assumptions u s ed in projecting the 
number of ambulatory surgical cases 
in the new or expanded ambulator)' 
s urgical program and the need for the 
additional — operating — rooms — ifl — the 
proposed service area: 

(2-) To alternatively demonstrate that the 

proposed — project — is — needed — because 
acce ss to ambulatory surgical s ervice s 
by the medically underserved residents 
of the propo s ed service area is re s trict 
cd, the applicant shall document: 
{A) — tbat — tfee — facility — ©r — program — witt 
charge at least 30 percent less for 
s imilar — ambulator^' — surgical — proce 
durcs than is charged by each existing 
Of — approved — ambulatory — surgical 
program. — including — as s urances — that 
unin s ured per s on s , undcrinsurcd 



1648 



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NORTH CAROLINA REGISTER 



November 16, 1992 



PROPOSED RULES 



persons. — Medicare — and — Medieaid 
recipients will be better served, or 
(B) — that the facility or program will eatab 
iish — a — significantly — tess — re s trict i ve 
admissions — policy — fef — ambulatory 
surgical services than used by each 
existing — er — approved — ambulatory 
surgical program, including assurano 
cs that uninsured per s on s , underin 
sured persons. Medicare and Medic 
aid recipients will be better served, 

£1110 

■(€) — all assumptions used in determining 
that current acce s s to the medically 
under s crved — is — restricted — etft4 — that 
projected acce ss will be improved. 

Statutory Authority G.S. 13IE-177. 

iS otice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rule cited as 10 NCAC 
26H . 0202. 

1 he proposed effective date of this action is 
February 1, 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on December 16, 1992 at the North Carolina 
Division of Medical Assistance, 1985 Vnvitead 
Drive, Room 132, Raleigh, NC 27603. 

ixeason for Proposed Action: Amendment will set 
reimbursement to UNC Hospitals on a cost basis 
for inpatient and outpatient services. 

i^onwient Procedures: Written comments con- 
cerning this amendment must he submitted by 
December 16, 1992. to: Division of Medical 
Assistance, 1985 Umstead Drive, Raleigh, NC 
27603 ATTN: Clarence Ervin. APA Coordinator. 
Oral comments may be presented at the hearing. 
In addition, a fiscal impact statement is available 
upon written request from the same address. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT 
PLANS 



SECTION .0200 - HOSPITAL INPATIENT 
REIMBURSEMENT PLAN 

.0202 RATE SETTING METHODS 

(a) An annual rate is determined for each hospi- 
tal to be effective for dates of service beginning 
each July 1 . Rates are derived from cost reports 
for a base-year period or from previous appeal 
decisions. The initial base-year is the cost-report- 
ing period ending in 1981. Services provided 
prior to July 1 . 1986 are reimbursed at rates not to 
exceed the rates effective July 1, 1985. 

(b) The prospective rate is the sum of the 
operating rate component and the capital rate 
component. The capital rate component is the 
higher of the base-year capital per diem cost or the 
most recent capital rate as adjusted upon previous 
appeal. The base-year capital cost per diem is 
computed by dividing total capital costs allocated 
to inpatient services by total inpatient days. The 
operating rate component is determined by inflat- 
ing the Medicaid base-year operating cost per diem 
to the rate year. The base-year operating cost per 
diem is computed by subtracting the capital cost 
per diem from the total base-year Medicaid cost 
per diem. Base-year Medicaid costs include 
inpatient routine, special care, and ancillary servic- 
es, malpractice insurance, interns" and residents' 
services, and other covered inpatient services. 

(c) Inflation factors for the operating rate com- 
ponents are based on the National Hospital Market 
Basket Index and the most recent actual and 
projected cost data available from the North 
Carolina Office of State Budget and Management. 

(d) The prospective rate for a new hospital is set 
at the lower of: 

(1) The all-hospital mean rate; or 

(2) Seventy-five percent of the hospital's 
projected average gross inpatient reve- 
nue per day during the first year of 
operations. 

This provision applies to a hospital if a cost report 
covering at least twelve months of normal opera- 
tions has not been filed. This rate is the base-year 
rate until a desk-reviewed cost report covering at 
least twelve months of normal operations is avail- 
able. 

(e) Out-of-state hospital services are reimbursed 
according to the rates established by the Medicaid 
Agency of the State in which the hospital is locat- 
ed. If a usable rate cannot be obtained, services 
are reimbursed at 75 percent of billed charges or 
a negotiated rate not to exceed reasonable cost. 

(f) The initial base-year for psychiatric hospitals 
is the cost reporting period ending in 1989, or 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1649 



PROPOSED RULES 



1990 if a full year cost report is available as of 
April 1, 1991. The total base-year per diem cost 
for a hospital is limited to the median per diem 
cost in the base-year of all psychiatric hospitals. 
The limit does not apply to or reduce any amorti- 
zation of start-up costs of an individual hospital. 
State-operated hospitals are not included in the 
calculation of the median per diem cost. 

(g) To assure compliance with the separate 
upper payment limit for State-operated facilities, 
the hospitals operated by the Department of Hu- 
man Resources and the University of North Caroli- 
na Hospitals will be reimbursed their reasonable 
costs in accordance with the provisions of the 
Medicare Provider Reimbursement Manual. 

(h) This plan intends to encourage the use of 
lower-cost hospitals for routine illnesses. Hospi- 
tals with rates at or below the all-hospital mean 
will be reimbursed at the full prospective rate 
without day limits. Hospitals with rates higher 
than the mean rate of all hospitals will be reim- 
bursed at the full prospective rate up to an annual 
days limit. Days in excess of the limit will be 
reimbursed at the mean rate of hospitals below the 
all-hospital mean. This reimbursement limitation 
will be eliminated for claims paid in April, 1991 
and thereafter if and when: 

( 1 ) the Health Care Financing Administra- 
tion, U.S. Department of Health and 
Human Services, approves amendments 
submitted to HCFA by the Director of 
the Division of Medical Assistance on 
or about March 14, 1991 as ^MA 
91-10 and #MA 91-11, wherein the 
Director proposes amendment of the 
State Plan to eliminate the "Annual 
Days Limit" to the Plan, and 

(2) the Director of the Division of Medical 
Assistance determines that sufficient 
funds are available pursuant to Rule 
.0206(b)(3) of this Section or otherwise 
for this purpose. 

Auihority G.S. 108A-25(h): W8A-54: 108A-55: 
S.L. 1985. c. 479. s. 86; 42 C.F.R. 447. Subpart 
C. 

TITLE 1 1 - DEPARTMENT OF 
INSURANCE 

iS otice is hereby given in accordance with G.S. 
150B-21 .2 that the N. C. Department of In.-mrance 
intends to amend rules cited as 11 NCAC 15 
. 0002 . . 0004 - . 0006 and . 0010. 



1 he proposed effective date of this action is 
February 1. 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on December 2. 1992 at the Medical Data- 
base Commission, 112 Cox Ave., Suite 208, 2nd 
Floor Board Room. Raleigh. N. C 27605. 

Iveason for Proposed Action: To comply with the 
provisions of G.S. 131E-212(b) (9). 

(comment Procedures: Written comments may be 
sent to Jim Hazel rigs. Medical Database Commis- 
sion, 112 Cox Avenue. Raleigh, N.C. 27605. Oral 
presentations may be made at the public hearing. 
Anyone having questions should call Jim Hazelrigs 
at (919) 733-7141 or Ellen Sprenkel at (919) 733- 
4529. 

CHAPTER 15 MEDICAL DATABASE 
COMMISSION 

.0002 DEFINITIONS 

As used in this Chapter, unless specifically stated 
otherwise, the following words have the following 
meanings: 

(1) Act. The North Carolina Medical Data- 
base Commission Act, G.S. 131E-210 
through 213. 

(2) Aggregate data. A grouping or categori- 
zation of the raw data such that the unit 
of observation is something other than an 
individual discharge. Reports of aggre- 
gate data with small cell counts will be 
edited to prevent potential identification 
of individual patients. 

(3) Ambulatory surgery billing form. Either 
the UB-82 or HCFA 1500 claim form 
required by the payor of services for 
ambulatory surgical services billing. 

(4) Ambulatory' surgical case. An individual 
who receives one or more ambulatory 
surgical procedures in an ambulatory^ 
surgical operating room during a single 
operative encounter. 

(5) Ambulatory surgical facility. As defined 
in G.S. 131E-176(1). 

(6) Ambulatory surgical program. As de- 
fined in G.S. I31E-I76(la). 

(7) Ambulatory' surgical services. Those 
surgical services provided to patients as 
pail of an ambulatory surgical program 



1650 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



PROPOSED RULES 



within a licensed ambulatory surgical 
facility or a general acute care hospital 
licensed under G.S. 131 E. Article 5^ Part 
A, 

(8) (5-)Case mix data. Case specific dis- 
charge data which describe socio-demogr- 
aphic characteristics of the patient; total 
and component charges; principal and 
other diagnoses; treatment and services 
provided to the patient; as well as dura- 
tion and status of the patient's stay in the 
hospital. Case mix data refers to the 
actual data elements abstracted from the 
UB-82 claim form as well as classifica- 
tions resulting from groupings of specific 
data elements, e.g., DRG category. 

(9) (4)Charge data. Charge data shall consist 
of the UB-82 data elements and codes 
specified in 11 NCAC 15 .0005. 

(a) Hospital inpatient reporting will consist 
of UB-82 data elements and codes; and 

(b) Hospital ambulatory surgical programs 
and ambulatory' surgical facilities re- 
porting cases of ambulators'/outpatient 
surgery' will consist of either or both 
the UB-82 or HCFA 1500 data ele- 
ments and codes. 

0)Commission. The Medical Database 
Commission established under G.S. 
131E-211. 

(^^Compilations. The arrangement of 
data collected by and furnished to the 
Commission by any corporation, associa- 
tion, or entity acting under agreement 
with the Commission for release and 
dissemination to the public. 
f^Data Provider. The legal entity re- 
sponsible for submitting data to the Com- 
mission as specified in 1 I NCAC 15 this 
Chapter. 

(13) fS^Dataset. The full collection of the 
data submitted by each data provider for 
a particular reporting period in the pos- 
session of the Commission or the con- 
tractor designated by the Commission to 
collect and process the data. 

(14) t^Executi\e Director. The chief operat- 
ing officer of the Commission. 

(15) HCFA. The Health Care Financing 
Administration of the I'.S. Department of 
Health and Human Services, or any 
successor agency. 

(16) f40)Health Care Provider. Any person, 
organization, or entity that renders health 
care services, e.g., hospital, as defined in 



(17) 



(a) 
(b) 

(c) 

(18) 
ial 



(19) 
(20) 



11 NCAC 15 .0002. 

f44^Hospital. Any facility licensed by 

the North Carolina Division of Facility 

Services under G.S. 131E-77 (Hospital 

Licensure Act) or under G.S. 122C-23 

(Licensure of Facilities for the Mentally 

III, the Mentally Retarded and Substance 

Abusers), but does not include: 

a facility with all of its beds designated 

for medical type "LTC" (long term 

care); 

a facility with the majority of its beds 
designated for medical type "PSY-3" 
(mental retardation); or 
a facility operated by the North Caroli- 
na Department of Corrections. 
Billing Forms. 
f+3)Uniform hospital billing form. 
Form UB-82/HCFA-I450, the hospital 
billing form developed by the National 
Uniform Billing Committee or its suc- 
cessor. 

Ambulatory surgery billing form. 
Either the UB-82 or HCFA 1500 form 
required by the payor of services for 
ambulatory surgical services billing. 
f4^Raw data. Patient specific records 
including those which have been stripped 
of all patient identifying information. 
Reporting facility. Any of the hospitals, 
ambulatory surgical facilities, nursing 
homes, physicians, or other health care 
providers from which collection of infor- 
mation is authorized in JJ. NCAC 15 
.0001 and for which administrative rules 



are published and currently apply. 
Statutory- Authority G.S. ]31E-212(h). 

.0004 UNIFORM BILLING FORM 

(a) All hospitals shall complete the uniform 
hospital billing form for every inpatient discharged 
after June 30, 1987, from any bed other than one 
designated medical type "LTC" regardless of the 
source of payment. For patients discharged after 
June 30. 1987 who were admitted prior to July 1. 
1987. hospitals shall submit to the Commission 
either an admit-through-discharge claim or the 
complete set of interim claims necessary to reflect 
the total length of stay and charges. 

(b) The information submitted to the Commis- 
sion shall be reported only for the primary payer, 
including Medicare. Medicaid, other government 
programs, private insurance, health maintenance 
organizations, self-insured, private pay patients. 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1651 



PROPOSED RULES 



and others. Claims for secondar)' payers will be 
considered duplicate information and should not be 
submitted to the Commission. 

(c) Unless otherwise indicated in these rules. 
this Section, completion of the uniform hospital 
billing form for inpatient cases shall be in accor- 
dance \>iith the instructions and definitions in the 
manual de\eloped by the National L'niform Billing 
Committee as adopted and finalized by the North 
Carolina Uniform Billing Committee. A copy of 
the manual is available for reference by contacting 
the Executive Director of the Medical Database 
Commi s sion at the Department of In s urance. Po s t 
Office Box 26387. 112 Cox Avenue. Suite 208. 
Raleigh. North Carolina. 27611. 27605. 

(d) All hospital ambulaton,' surgical programs 
and all ambulator^' surgical facilities shall complete 
either the l'B-82 or the HCFA 1500 form for 
every ambulatory surgical patient "released" from 
care after September 30. 1 993 . The choice of 
form will be dictated by the requirements of the 
payor for whom the bill il prepared for the case 
invoh'ed. however, the HCFA 1500 form will be 
prepared [n cases where the payor has not stipulat- 
ed which billing form to use. 

ie] The UB-82 and the HCFA 1500 forms will 
be completed in accordance v^ith the instructions 
and definitions issued by the Commission. A copy 
of these instructions is axailable for reference by 
contacting the Executive Director at 1 12 Cox 
A\'enue. Suite 208. Raleigh. North Carolina. 
27605. 

Stiituiory Authorin G.S. 131E-212(b). 



.0005 DESCRIPTION OF DATA TO BE SUB>nTTED 

(a) In accordance with all pertinent state and federal regulations on patient confidentiality, the following 
l'B-82 data elements must be submitted to the Commission for every inpatient discharged regardless of payer: 
DATA ELEMENT DESCRIPTION 

(1) Patient Control Number Form locator 3 - As stated 

in the North Carolina 
UB-82 manual. 

(2) Bill Type Form locator 4 - As stated 

in the North Carolina 
UB-82 manual. 

(3) Medicaid Pro\ider Number Form locator 8 - The number 

assigned to the provider 
by Medicaid or as assigned 
by the Commission. 
(4j Zip Code of Patient Address Form locator 1 1 - Only the 

zip code portion of this 
field is required. Code 
as stated in the North 
Carolina UB-82 manual. 



1652 7:16 NORTH CAROLINA REGISTER November 16, 1992 



PROPOSED RULES 



(5) 


Patient Birth Date 


(6) 


Patient Sex 


(7) 


Admission Date 


(8) 


Admission Type 


(9) 


Source of Admission 


(10) 


Patient Status 


(11) 


Discharge Date (Statement 




Covers Period) 


(12) 


All Revenue Codes and 




Associated Charges 


(13) 


Payer Identification 



(14) Certificate/Social Security/ 

Health Insurance Claim/ 
Identification Number 

(15) Insurance Group Number 



(16) Principal Diagnosis 



(17) Other Diagnoses 

(4 others maximum) 

(18) Principal Procedure 

and Date 

(19) Other Procedures and 

Dates 

(20) Attending Physician 

Identification 



(21) Other Physician 
Identification 



Form locator 12 - As stated 

in the North Carolina 

UB-82 manual. 

Form locator 13 - As stated 

in the North Carolina 

UB-82 manual. 

Form locator 15 - As stated 

in the North Carolina 

UB-82 manual. 

Form locator 17 - As stated 

in the North Carolina 

UB-82 manual. 

Form locator 18 - As stated 

in the North Carolina 

UB-82 manual. 

Form locator 21 - As stated 

in the North Carolina 

UB-82 manual. 

Form locator 22 - As stated 

in the North Carolina 

UB-82 manual. 

Form locators 51 and 53 - 

As stated in the North 

Carolina UB-82 manual. 

Form locator 57A - 

Classification code and 

specific carrier 

identification code for 

primary payer. 

Form locator 68 - As stated 

in the North Carolina 

UB-82 manual. 

Form locator 70 - As stated 

in the North Carolina 

UB-82 manual. 

Form locator 77 - As stated 

in the North Carolina 

UB-82 manual. 

Form locators 78-81 - As 

stated in the North 

Carolina UB-82 manual. 

Form locator 84 - As stated 

in the North Carolina 

UB-82 manual. 

Form locators 85 & 86 - As 

stated in the North 

Carolina UB-82 manual. 

Form locator 92 - Only the 

State license number of 

this field is required. 

Code as stated in the North 

Carolina UB-82 manual. 

Form locator 93 - Only the 

State license number of this 

field is required. Code as 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1653 



PROPOSED RULES 



stated in the North Carolina 

UB-82 manual. 
(b) In accordance with all pertinent State and federal laws or regulations on patient confidentiality, the 
following UB-82 data elements must be submitted to the Commission for every ambulatory surgical patient 
released regardless of payor: 

DESCRIPTION 

Form locator 3 - As stated 



DATA ELEMENT 



ill 



13) 



i9j 



Patient Control Number 



il) Bill Type 



Medicaid Provider Number 



(4) Zi p Code of Patient Address 



(5) Patient Birth Date 



(6) Patient Sex 



(7) Admission Date 



(8) Admission Type 



Source of Admission 



(10) Patient Status 



Discharge Date (System 
Co\'ers Period) 

All Revenue Codes and 
Associated Charges 



( 13) Payer Identification 



(14) Certificate/Social Security/ 

Health Insurance Claim/ 
Identification Number 

(15) Insurance Group Number 



in the North Carolina 
UB-82 Manual. 



Form locator 4 ; As stated 
in the North Carolina 
UB-82 Manual. 



Form locator 8 ^ The number 
assigned to the provider 
by Medicaid or as assigned 
by the Commission. 
Form locator 1 1 ^ Only the 
zip code portion of this 
field is required. Code 
as stated in the North 
Carolina UB-82 Manual. 
Form locator 12 ; As stated 
in the North Carolina 
UB-82 Manual. 



Form locator 13 ; As stated 
in the North Carolina 
UB-82 Manual. 
Form locator 15 ;; As stated 
in the North Carolina 
UB-82 Manual. 



Form locator 17 ; As stated 
m the North Carolina 
UB-82 .Manual. 
Form locator 18 ^ As stated 
in the North Carolina 
UB-82 Manual. 



Form locator 21 ; As stated 
in the North Carolina 
UB-82 Manual. 



Form locator 22 ; As stated 
in the North Carolina 
UB-82 Manual. 
Form locators 51 and 53 ^ 
As stated in the North 
Carolina UB-82 Manual. 



Form locator 57A ; 

Classification code and 

specific carrier 

identification. 

Form locator 68 :; As stated 

in the North Carolina 

UB-82 Manual. 



Form locator 70 ; As stated 
in the North Carolina 
UB-82 Manual. 



1654 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



PROPOSED RULES 



(16) Principal Diagnosis 



Form locator 77 ; As stated 
in the North Carolina 
UB-82 Manual. 



(17) 



Other Diagnoses 
(4 others maximum) 

Principal Procedure 
and Date 



(19) Other Procedures 



(20) Attending Physician 



Form locators 78-81 ^ As 
stated in the North 
Carolina UB-82 Manual. 



(21) Other Physician 
Identification 



Form locator 84 ; As stated 
in the North Carolina 
UB-82 Manual. 
Form locators 85 & 86 ^ As 
stated in the North 
Carolina UB-82 Manual. 
Form locator 92 - Only the 
State Identification number 
license is required. 
Code as stated 
regardless of payer. 
Form locator 93 ; Only the 
State number of this 
field is required. Code as 
stated in the North Carolina 
UB-82 Manual. 



(c) In accordance with all pertinent State and federal laws or regulations on patient confidentiality, the 
following HCFA 1500 data elements must be submitted to the Commission for every ambulatory surgical 
patient released. 

DESCRIPTION 

Form locator 1 - as stated in the 



DATA ELEMENT 



(1) Type Coverage 



12} 



m 



(4) 



Insured's ID Number 



Patient's Date of Birth 



Sex 



(5) Zip code of Patient Address 



(6) Diagnosis or Nature of 
Illness or Injury 



{7} Dates of Service 



(8) Place of Service 



(9) Type of Service 



Commission issued ambulatory 
surgery data submission manual. 
Form locator fa ; as stated in the 
Commission issued ambulatory 
surgery data submission manual. 
Form locator 3 ; as stated in the 
Commission issued ambulatory 
surgery data submission manual. 
Form locator 3 ; as stated in the 
Commission issued ambulatory 
surgery data submission manual. 
Form locator 5 ; only the zip code is 
required as stated in the Commission 
issued ambulatory surgery data 
submission manual . 

Form locator 21 ; using the ICD-9-CM 
code and stated in the Commission 
issued ambulatory surgery data 
submission manual. 
Form locator 24A ^ as stated In the 
Commission issued ambulatory 
surgeiy data submission manual. 
Form locator 24B ; as stated in the 
Commission issued ambulatoi"v 
surgery data submission manual. 
Form locator 24C ; as stated in the 
Commission issued ambulatory 
surgery data submission manual. 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1655 



PROPOSED RULES 



14) 



Procedures. Services, 
Supplies 

Diagnosis Code 



Charges 



10) Procedures. Services, Form locator 24D ; as stated ]n the 

Commission issued ambulatory 
surgery data submission manual. 
Form locator 24E 2 as stated m the 
Commission issued ambulatory 
surgery data submission manual. 
Form locator 24F ; as stated in the 
Commission issued ambulatory 
surgery data submission manual. 
Form locator 24G ; as stated in the 
Commission issued ambulatory 
surgery data submission manual . 
Form locator 25 ; as stated ]n the 
Commission issued ambulatory 
surgery data submission manual. 
Form locator 26 ; as stated in the 
Commission issued ambulatory 
surgery data submission manual. 
Form locator 28 ^ as stated in the 
Commission issued ambulatory 
surgery data submission manual. 
Form locator 3_3 ; as stated In the 
Commission issued ambulatory 
surgery data submission manual. 
fb)(d) Any hospital or ambulatory surgical facility which does not have a Medicaid provider number shall 
contact the Commission for assignment of an identification number. This number shall be used in the 
Medicaid Provider Number field for all UB-82 records submitted to the Commission. 



13) Days or Units 



Federal Tax ID 



(15) Patient's Account No. 



Total Charge 



17) Physician's PIN Number 



Statutory Authority G.S. I3IE-212(h). 

.0006 DATA SUBMISSION 

(a) Data Submission Requirements: 

( 1 ) At a minimum, hospitals and ambulato- 
ry surgical facilities shall submit the 
required data within 45 calendar days 
following the close of the calendar 
quarter during which the patient was 
discharged or died; therefore, data for 
the calendar quarters ending March 3 1 , 
June 30, September 30, and December 
31 shall be submitted on or before May 
15, August 14, November 14, and 
February 14, respectively. However, 
hospitals may submit data more fre- 
quently during the calendar quarter in 
which the patient was discharged or 
died. 

(2) Upon receipt of a written request for an 
extension from the data provider, the 
Commission may, for good cause, 
extend the time for submitting data for 
a particular reporting period. 

(b) Format for Data Submission: 

(1) All hospitals and ambulatory surgical 
facilities may submit UB-82 and HFCA 



1500 (ambulatory surgery only ), dis- 
charge data to the Commission on one 
of three acceptable types of media: on 
paper UB-82 forms, and HCFA 1500 
forms (ambulatory surgery only) , on a 
magnetic tape, or on a personal com- 
puter (PC) diskette. Other types of 
media used to submit the required data, 
such as on-line transmission, must be 
approved by the Commission. 
(2) On and after July 1 , 1991 . each hospital 
with 1,000 or more annual discharges, 
as reported on the most current hospital 
licensure application, must submit the 
required UB-82 inpatient discharge data 
on one of the acceptable electronic 
media specified in this Rule and in the 
format as required by the Commission. 
An exemption will be considered by the 
Commission if the hospital can demon- 
strate that it lacks the technical capabili- 
ty and computer resources to produce 
the required data electronically. The 
request for exemption must be made in 
writing by the hospital's chief executive 
officer, and received by the Commis 



1656 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



PROPOSED RULES 



sion no later than June 15. 1991. Each 
hospital granted an exemption must 
submit an annual certification signed by 
the hospital's chief executive officer 
verifying that the hospital continues to 
meet the exemption criteria. The annu- 
al certification form received from the 
Commission must be returned to the 
Commission no later than July 1 of 
each year. 

(3) The physical specifications of the mag- 
netic tape shall be any size reel, record- 
ed in nine track. Extended Binary 
Coded Decimal Interchange Code 
(EBCDIC) mode or ASCII, with densi- 
ty equal to 1600 BPl or 6250 BPl, 
unlabeled or with IBM standard labels. 
Acceptable specifications for submis- 
sion of data on a floppy disk shall be 5 
1/4 inch IBM-PC compatible diskette. 

(4) Data submitted via magnetic tape shall 
conform to the uniform record layout as 
required by the Commission. Data 
submitted via PC diskette shall also 
conform to a uniform record layout as 
required by the Commission. Copies of 
the required format may be obtained by 
contacting the Executive Director of the 
Medical Database Commission at the 
Department of Inaurnncc. Post Office 
Box 26387, 112 Cox Avenue, Suite 
208, Raleigh, North Carolina, 37444 
27605 . 

(c) Edit Criteria: 

(1) Data elements that are considered criti- 
cal fields on the UB-82 form for record 
editing purposes are Patient Control 
Number, Bill Type, Medicaid Provider 
Number, Zip Code, Date of Birth, Sex, 
Admission Date, Admission Type, 
Source of Admission, Patient Status, 
Statement Covers Period, Revenue 
Codes and Charges, Primary Payer, 
Principal Diagnosis, Attending Physi- 
cian Identification. Records containing 
invalid UB-82 codes or all-blank fields 
for any of these data elements will be 
designated as error records. 

(2) Data elements that are considered criti- 
cai fields on the HCFA 1500 form for 
record editing purposes are Insured's 
ID. Number, Medicaid Provider num- 
ber. Zip Code, Date of Birth, Sex, 
Dates of Service, place of service, type 
of service, procedures defined with 



£3} 



14} 



15} 



£Aj 



im 



CPT/HCPCS codes with modifiers, 
principle diagnosis codes, principle and 
secondary surgical procedure, patient's 
account number, physician's PIN. 
Records containing invalid HCFA 1500 
form codes or aU blank fields for any 
of these data elements will be designat- 
ed as error records. 

^The last revenue code listed must be 
001, Total Charge, and this charge 
must equal the sum of charges for all 
other revenue codes reported. 
{^On the UB-82 form for inpatient 
cases, the following data elements must 
contain valid codes if present: Primary 
Payer - Specific Carrier Identification, 
Other Diagnoses, Principal Procedure 
Code and Date, Other Procedure Codes 
and Dates, Other Physician Identifica- 
tion (if a procedure was performed). 
For ambulatory surgery cases the fol- 
lowing data elements must contain valid 
codes if present: 
reported on UB-82: Primary Payer ; 
Specific Carrier Identification, Other 
Diagnoses. Principal Procedure Code 
and Date. Other Procedure Codes and 
Dates , Identification of Surgeon per- 
forming the procedure- 
reported on HCFA 1500: Type cov- 
erage and insured ID number, specific 
carrier identification, procedures, 
services or supplies in CPT4 or 
HCPC code, dates of service, Physi- 
cian PIN. 



£61 



f4)Upon completion of the data error 
assessment, the Commission or the 
designated contractor shall promptly 
notify each hospital or ambulatory 
surgical facility whose records do not 
pass the critical edit checks. This 
notification shall identify the discharge 
records and the data items within them 
which do not pass the edits. Each 
hospital receiving an error notification 
report shall respond within 30 calendar 
days of the notification by making the 
necessary changes. 

^Upon receipt of a written request for 
an extension from the data provider, the 
Commission may, for good cause, 
extend the time for submitting the 
necessary changes for a particular 
reporting period, 
(d) Data Submission Arrangements: 



m 



7:76 



NORTH CAROLINA REGISTER 



November 16, 1992 



1657 



PROPOSED RULES 



( 1 ) Each hospital or ambulatory surgical 
facility or its designated agent shall 
submit the required UB-82 data directly 
to the Commission or to the designated 
contractor. 

(2) Resubmissions of data as required by 
the Commission or upon the initiative 
of a hospital or ambulatory surgical 
facility will be accepted for the purpos- 
es of adding records, amending data 
elements or otherwise making modifica- 
tions to a previous data submission. 
Resubmissions shall conform to the 
requirements of I I NCAC 15 .0006(b). 

(e) Reimbursement for Data Submission: 

For UB-82 and HCFA 1500 discharge 
records generated solely for submission to the 
Commission due t) 

the absence of a third party payer, hospitals or 
ambulatory surgical facilities shall be reimbursed 
40 cents ($0.40) per discharge, regardless 
of the choice of medium for submission. 

Statutory Authority G.S. 131 E-2 12(h). 

.0010 CONFIDENTIALITY OF DATA 

(a) The Commission shall ensure that any 
contract entered into with other parties for the 
purposes of processing and analysis of data collect- 
ed under this regulation shall contain assurances 
that such other parties shall also comply with the 
provisions of peilinent state and federal regulations 
on patient confidentiality. 

(b) The Patient Control Number (1)8-82 form 
locator 3) and the Certificate/Social Securi- 
ty/Health Insurance Claim/Identification Number 
(L'B-82 form locator 68) and Insured's I.D. Num- 
ber (HCFA 1500 form locator la) and the Patient 
Account Number (HCFA 1500 form locator 26) 
shall be used only for the purpose of establishing 
an audit trail in the event that it is necessary to 
retrieve the primary source document for valida- 
tion of the abstracted data. Data collected under 
these regulations and disclosed to other parties 
shall be purged of Patient Control Numbers, 
Certificate/Social Security/Health Insurance 
Claim/Identification Numbers and Dates of Birth 
prior to disclosure. 

(c) Raw data submitted to the Commission or to 
the designated contractor by hospital s by data 
providers pursuant to the act shall be privileged 
and confidential, and shall not be disclosed in any 
manner. The foregoing includes, but shall not be 
limited to, disclosure, inspection or copying under 
the State's Public Record Act. However, these 



prohibitions shall not apply to the reports prepared 
for release and dissemination by the Commission, 
(d) For compilations released, the Commission 
will develop procedures to prevent small cell 
counts from potentially identifying an individual 
patient. 

Statutory Authority G.S. 131E-212(h). 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

iiotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rules cited 
as ISA NCAC JOA .0401 - .0402; lOB .0115; lOF 
.0305, .0314. .0320 - .0321. .0330, .0340. 

1 he proposed effective date of this action is 
February 1. 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A request for a public hearing must be in 
writing and submitted to the Director's office. 512 
N. Salisbury Street, Raleigh, NC 27604-1188 by 
December 1. 1992. 



R 



easons for Proposed Actions: 



15A NCAC lOA .0401 - .0402 - To make agency 
procedures comply with statutory provisions. 

15A NCAC lOB .0115 - To delete administrative 
rules which are redundant and/or conflict with 
local laws. 

15A NCAC lOF .0305 - To remove no wake zones 
from the Intracoastal Waterway in which the U. S. 
Army Corps of Engineers does not approve no 
wake zones. 

15A NCAC lOF . 0314 - To remove a no wake zone 
from the Intracoastal Waterway in which the U. S. 
Army Corps of Engineers does not approve no 
wake zones. 

15A NCA C lOF . 0320 - To remove a no wake zone 
from that portion of Swansboro Harbor located in 
the Intracoastal Waterway in which the U.S. Army 
Corps of Engineers does not approve no wake 



1658 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



PROPOSED RULES 



zones. 

15A NCAC 1 OF .0321 - To remove a no wake zone 
from the Intracoastal Waterway in which the U.S. 
Arm\ Corps of Engineers does not approve no 
wake zones. 

15A NCAC 1 OF .0330 - To remove a no wake zone 
from the Intracoastal Waterway in which the U.S. 
Army Corps of Engineers does not approve no 
wake zones. 

15A NCA C lOF . 0340 - To remove a no wake zone 
from the Intracoastal Waterway in which the U. S. 
Army Corps of Engineers does not approve no 
wake zones. 



rule sought to be adopted or amended 
and a statement of its desired effect; 
and 

{§) date upon which the rule, amendment 

or repeal is proposed to become cffee 
tive; and 
(5) {^ signature of the petitioner, 
(b) In addition to the foregoing, the petition may 
contain expression of any reasons in support or 
arguments in favor of the regulatory action pro- 
posed. Any tables, charts, maps, publications, 
photographs or other supporting materials which 
the petitioner deems pertinent to the proposal may 
be included by way of exhibits or attachments. 

Statutory- Authority- G.S. 150B-20. 



(comment Procedures: Interested persons may 
present their views in writing from November 16, 
1992 to December 16. 1992. Such written com- 
ments must be delivered or mailed to the N. C. 
Wildlife Resources Convnission. 512 N. Salisbury 
Street, Raleigh. NC 27604-1 188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETi" 

SUBCHAPTER lOA - WILDLIFE 
RESOURCES COM^USSION 

SECTION .0400 - PETITIONS FOR RULE 

.0401 FORM AND CONTENTS OF 
PETITION 

(a) A petition for rule must be a written commu 
nication, sp e cifically d es ignat e d as a "P e tition for 
Rule," petition requesting rulemaking, addressed 
to the Executive Director. Wildlife Resources 
Commission, Archdale Building, 512 North Salis- 
bury Street, Raleigh, North Carolina 2761 1 , 
27604-1188, and must contain: 

(1) name and address of the petitioner; 

(2) name and address of the person, group 
or organization, if any, on behalf of 
which the petition is made, together 
with the representative capacity of the 
petitioner; 

(3) identification of the rule or r e gulation 
sought to be adopted, amended or 
repealed^ if such is the purpos e of the 
petition; 

(4) suggested language for any original or 
amendatory rul e or r e gulation propo se d 
for adoption, or a c le ar and concise 



.0402 ACTION ON PETITION 

(a) The Executive Director shall cause the 
petition fef — fvtie requesting rulemaking to be 
marked or stamped with the date of its receipt by 
him, which date shall constitute the date of its 
submission. The Executive Director shall then 
refer the petition requesting rulemaking to the 
Wildlife Resources Commission for its consider- 
ation. 



(b) Within iQ 120 days following submission of 
the petition for rule, the Executive Director re- 
questing rulemaking, the Wildlife Resources 
Commission shall: 

(1) deny the petition in writing, stating the 
reason or reasons for such denial; or 

(2) initiate rule making rulemaking pro- 
ceedings in accordance with G.S. 
1 4 3B 18 and I50B 12, or in accordance 
with G.S. 150B 13; G.S. I50B-20. 

i^ take such action as may be suggested 

by the petition for rule; or 
{4) talce such other action a s ho may deem 

appropriat e . 

(c) The Wildlife Resources Commission shall 
notify the person who submitted the petition of the 
action taken by the Commission. Any denial of a 
petition for rule requesting rulemaking shall be 
sent to the petitioner at the address therein indicat- 
ed by registered mail, "return receipt requested." 

Statutory Authority- G.S. 150B-20. 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1659 



PROPOSED RULES 



SUBCHAPTER lOB - HUNTING AND TRAPPING 
SECTION .0100 - GENERAL REGULATIONS 

.0115 SHINING LIGHTS IN DEER AREAS 

(a) It having been found upon sufficient evidence that certain areas frequented by deer are subject to 
substantial unlawful night deer hunting, or that residents in such areas have been greatly inconvenienced by 
persons shining lights on deer, or both, the shining of lights on deer in such areas is limited by Paragraphs 
(b) and (c) of this Rule, subject to the exceptions contained in Paragraph (d) of this Rule. 

(b) No person shall, between the hours of 1 1:00 p.m. and one-half hour before sunrise, intentionally shine 
a light upon a deer or intentionally sweep a light in search of deer in the indicated portions of the following 
counties: 

(1) Beaufort -- entire county; 

(2) Bladen -- entire county; 

(3) Brunswick — entire county; 

(4) Camden — entire county; 

(5) Chowan — entire county; 

(6) Currituck — entire county; 

(7) Duplin -- entire county; 

(8) Franklin -- entire county; 

(9) Gates -- entire county; 

(10) Greene -- entire county; 

(11) Hertford -- entire county; 

(12) Hoke — entire county; 

(13) Hyde -- entire county, except that part of the county described in Paragraph (c) of this Rule; 

(14) Jones -- entire county; 

(15) Lenoir — entire county; 

(16) Martin — entire county; 

(17) Nash — entire county; 

(18) Pamlico — entire county; 

(19) Pasquotank — entire county; 

(20) Pender — entire county; 

(21) Perquimans -- entire county; 

(22) Pitt -- entire county; 

(23) Richmond -- entire county; 

(24) Sampson -- entire county; 

(25) Tyrrell -- entire county; 

(26) Vance -- entire county; 

(27) Wake -- entire county; 

(28) Warren -- entire county; 

(29) Washington — entire county; 

(30) Wayne — entire county. 

(c) No person shall, between the hours of one-half hour after sunset and one-half hour before sunrise, 
intentionally shine a light upon a deer or intentionally sweep a light in search of deer in the indicated portions 
of the following counties: 

(1) Alamance -- entire county; 

(2) Alexander -- entire county; 

(3) Alleghany -- entire county; 

(4) Anson -- entire county; 

(5) Ashe -- entire county; 

(6) Avery -- that portion south and east of Highway 221; 

(7) Burke -- entire county; 

(8) Cabarrus -- entire county; 
f9-) Caldwell entire county; 

(9) f+0^ Caswell -- entire county; 



1660 7:16 NORTH CAROLINA REGISTER November 16, 1992 



PROPOSED RULES 



(10) 


m^ 


(11) 


k^ 


(12) 


H^ 


(13) 


f44) 


(14) 


f44) 


(15) 


f+^ 


(16) 


H^ 


(17) 


fW 


(18) 


H^ 


(19) 


t30) 


(20) 


f*+^ 


(21) 


^m 


(22) 


f3^ 


(23) 


(34) 


(24) 


(3^ 


(25) 


O^ 


(26) 


(3^ 



Catawba — entire county; 

Chatham — entire county; 

Clay -- entire county; 

Cleveland -- entire county; 

Cumberland -- entire county; 

Davidson — entire county; 

Davie -- entire county; 

Durham -- entire county; 

Edgecombe — entire county; 

Forsyth County -- entire county; 

Gaston — entire county; 

Granville — entire county; 

Guilford -- entire county; 

Halifax — entire county; 

Harnett -- entire county; 

Henderson -- entire county; 

Hyde — that part bounded on the north by a line running parallel with and 1(X)0 yards in a 
northward direction from that part of SR 1304 that leads from Hodges' Fork to Rose Bay, on the 
east by the Mattamuskeet National Wildlife Refuge boundary, on the southeast by US 264, and on 
the west and southwest by a line running parallel with and 1000 yards in a west or southwest 
direction from the centerline of SR 1304; 

(27) (3^ Iredell — entire county; 

(28) (3^ Johnston — entire county; 

(29) 00) Lee — entire county; 

(30) (^4) Lincoln — entire county; 

(31) 03) McDowell — entire county; 

(32) 0^ Mecklenburg -- entire county; 

(33) (34) Mitchell — entire county; 

(34) (^^ Montgomery — entire county; 

(35) 04) Northampton -- entire county; 

(36) 07) Orange County — entire county; 

(37) {?>%) Person -- entire county; 

(38) 09) Polk -- entire county; 

(39) (40) Randolph — entire county; 

(40) (44^ Robeson County — entire county; 

(41 ) f43) Rockingham -- entire county; 

(42) f43-) Rowan -- entire county; 

(43) (44) Rutherford - entire county; 

(4§) Scotland that part lying west of US 4 01 north of Laurinburg and north of US 7 4 we s t of 

Laurinburg; 

(44) f46) Stanly — entire county; 

(45) f47) Stokes -- entire county; 

(46) (4^ Surry — entire county; 

(47) f49) Transylvania -- entire county; 

(48) 00) Union -- entire county; 

(49) 04) Watauga -- entire county; 
03) Wilkes entire county; 

(5^) Yadkin entire county; 

(50) 04) Yancey — entire county. 

(d) Paragraphs (b) and (c) of this Rule shall not be construed to prevent: 

(1) the lawful hunting of raccoon or opossum during open season with artificial lights designed or 
commonly used in taking raccoon and opossum at night; 

(2) the necessary shining of lights by landholders on their own lands; 

(3) the shining of lights necessary to normal travel by motor vehicles on roads or highways; or 

(4) the use of lights by campers and others who are legitimately in such areas for other reasons and 



7:76 NORTH CAROLINA REGISTER November 16, 1992 1661 



PROPOSED RULES 



who are not attempting to attract or to immobilize deer by the use of lights. 



Statutory Authority G.S. 113-134: 113-291.1: S.L. 
1180. 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETV 

SECTION .0300 - LOCAL WATER SAFETl 
REGLTATIONS 

.0305 BRL^SWICK COUNTY 

(a) Regulated Areas. This Rule applies to the 
waters and portions ot waters described as follows: 

(1) Lockwoods Folly River. An area 
bounded on the north by the north bank 
of Lockwoods Folly River, on the south 
by Mud Flats in the Lockwoods Folly 
River and extending 300 feet north and 
300 feet south of Varnums Landing at 
Genoes Point. 

(2) Calabash River. An area located on the 
Calabash River beginning 100 feet west 
of the Billy Cox Landing and extending 
100 feet east of Captain Harr)'"s Land- 
ing. 

(3) State Port Authority Small Boat Har- 
bor. Beginning at the Intracoastal 
Waterway on the easterly side of the 
North Carolina State Port Authority 
Small Boat Harbor; thence runs along 
and with the easterly boundary of the 
said boat harbor basin and along the 
northerly boundary and westerly bound- 
ary thereof to a point at the intersection 
of the v\esterly boundary of said boat 
harbor with the highwater mark of the 
Intracoastal Waterway; runs thence in 
an easterly direction with the highwater 
mark of the Intracoastal Waterway to 
the place and point of beginning, and 
being the entire small boat harbor in 
Southport. 

f4) Intracoa s tal Watcrvt'oy: 

{Aj — Southport. 

fi^ That portion of the Intracoastal 

waterw'ny. — which — intersects — the 
entrance to the "Uld 't'nchl Ba s in" 
at the city of Southport. — for a 
distance of 350 foot to be mark e d 
at e ach end by appropriate mark 
ors . 

ft^) That portion of the ICW which 

intersects — the — entrance — te — the 
Southport Marina at the city of 



1981, Ch. 410; S.L. 1981 (Second Session 1982), Ch. 

Southport for a diatancc of ap 
proximately — 300 — yards — le — be 
mark e d at each end by appropriate 
markers. 
t&) — Holdcn Beach. — That portion of the 
Inland — Waterway — at — the — Town — ©f 
Holdon Beach from a point opposite 
Rothschild Street ea s terly to a point 
approximately — 1-90 — yards — east — &f 
Conch Street to be marked at each 
end by appropriate markers. 
{G) — Inlet View Marina. — That portion of 
the Intracoa s tal Waterway v^'ithin 500 
feet of Inlet Vicv\' Marina. — located 
between Ocean I s le Beach and Sea 
flidc. 
f&) — Tanglevvood Area Boat Ramp. — That 
portion of the Intracoastal Waterway 
within 100 yards of the Tanglcwood 
Area boat ramp located on the north 
side of the said waterway opposite 
Holdon Beach. 
(4) {&) Shallotte River. The portion of the 
Shallotte River beginning at its intersec- 
tion with the Intracoastal Waterway and 
extending from the northern boundary 
of the Intracoastal Waterway for a 
distance of 500 feet to the north, to be 
marked by appropriate markers. 
15] {h) Big Davis Creek. That part of Big 
Davis Creek within 100 yards of Sport- 
sman Inn at Blue Water Point Marina 
near Long Beach. 
(6) ifh Town of Ocean Isle Beach. Those 
waters in the canals, both natural and 
concrete, which are located on the 
south side of the Intracoastal Waterway 
in the Town of Ocean Isle Beach. 

(b) Speed Limit. No person shall operate any 
motorboat or vessel at greater than no-wake speed 
within any of the regulated areas described in 
Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Brunswick County 
is designated a suitable agency for placement and 
maintenance of the markers implementing this 
Rule, subject to the approval of the United States 
Coast Guard and the United States Army Corps of 
Engineers. 

Statutory Authority- G.S. 75A-3: 75A-15. 



1662 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



PROPOSED RULES 



.0314 NEW HANOVER COUNTY 

(a) Regulated Areas. This Rule applies to the 
following waters in New Hanover County: 

(1) that area bounded on the north by the 
bridge of US 74-76 crossing the Intra- 
coastal Waterway, on the south by a 
line parallel to the center line of said 
highway and intersecting Intracoastal 
Waterway marker number 127, on the 
west by the high-water line of 
Wrightsville Sound, and on the east by 
a line perpendicular to the center line of 
said highway and intersecting marker 
number 27 in Motts Channel; 

(2) that area of Motts Channel between 
marker number 27 at the Intracoastal 
Waterway on the west and marker 
number 16 at the entrance from Banks 
Channel on the east; 

~^ (3) that area bounded on the west by the 
bridge of US 76 crossing Bradley 
Creek, on the north and south by the 
banks of said creek, on the east by a 
line parallel to the center line of the 
aforesaid highway, said line being 
1,000 feet, more or less, eastwardly 
therefrom and intersecting the 
westernmost port (black) marker in 
Bradley Creek Channel; 

(4) that part of Lee's Cut between the 
Intracoastal Waterway and the eastern 
boundary of the Lee's Cut-Channel 
Walk property at Wrightsville Beach. 

{&j that part of Myrtle Grove Sound at the 

Dolphin Bay boat docks extending 150 
yards — t© — either — sitde — of Intracoastal 
Waterway marker No. 157. 

(5) (6) the unnamed channel lying between 
the shore west of Bahama Drive in the 
Town of Wrightsville Beach and an 
unnamed island located approximately 
500 feet northeast of the US 74 bridge 
over Banks Channel. 

(6) fj^ those waters of the Northeast Cape 
Fear River between the US Hwy. 117 
bridge and the Seaboard Coastline 
Railroad bridge. 

(b) Speed Limit. No person shall operate a 
vessel at greater than no-wake speed within any of 
the regulated areas described in Paragraph (a) of 
this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of New Hanover 
County is designated a suitable agency for place- 
ment and maintenance of the markers implement- 



ing this Rule, subject to the approval of the United 
States Coast Guard and the United States Army 
Corps of Engineers. 

Statutory Authority G.S. 75A-3: 75A-15. 

.0320 ONSLOW COUNTY 

(a) Regulated Areas. This Rule applies to the 
following waters and portions of waters: 

(1) Old Settler's Beach: those waters of 
Onslow County contained within the 
canals located in the Old Settler's Beach 
subdivision extended from the Pender 
County line northwardly or northeaster- 
ly to the canal adjacent to or near the 
property of Topsail Island Developers, 
Inc., and more specifically those canals 
extending along the cul-de-sac lots from 
the Pender County line northwardly or 
northeasterly to the most northwardly 
of said canals above referred to, said 
canals extended from First Street to the 
canal lying northwardly or northeasterly 
of Ninth Street, to include those waters 
of the approach canal at Old Settler's 
Beach from marker number 53 in the 
Intracoastal Waterway south to Broad- 
way Street; 

(2) New River: those waters of New Riv- 
er, near Jacksonville, between a point 
100 yards upstream, and 300 yards 
downstream, of the Seaboard Coast 
Line Railroad trestle; and those waters 
of the New River between the Old 
Bridge Street and US 17 (Riverview 
Street) bridges and upstream from the 
US 17 bridge along the south shore to 
a point 50 yards beyond the Jackson- 
ville Marina; 

(3) Wheeler's Point: those waters in the 
creek from Wheeler's Point northerly to 
SR 1558 near the town of Sneads Fer- 
ry; 

(4) Swansboro Harbor: those waters of 
White Oak River and Swansboro Bay 
we s t of a line 25 yard s oa s t of and 
parallel with the NC 2 4 bridge, east of 
a line running through markers 4 6C and 
4 7A at Casper's Marina, and north of 
an cast west line intersecting the north 
crn point of the island lying immediate 
ly we s t of marker 4 6B. between the 
Atlantic Intracoastal Waterway and the 
NC Highway 24 bridge. Swansboro. 

(b) Speed Limit. No person shall operate any 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1663 



PROPOSED RULES 



motorboat or vessel at greater than no-wake speed 
within the regulated areas described in Paragraph 
(a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Onslow County is 
designated a suitable agency for placement and 
maintenance of the markers implementing this 
Rule, subject to the approval of the United States 
Coast Guard and the United States Army Corps of 
Engineers. 

Stumtors- Authority G.S. 75A-3: 75A-15. 

.0321 FENDER COUNTV' 

(a) Regulated Areas. This Rule applies to the 
following v\aters in Pender County: 

(1) the canal adjoining Old Point Develop- 
ment; 

(2) the First Finger Canal in New Topsail 
Beach; 

<43 that portion of the Intracoaatal Water 

way within 2000 foot of the Scars Land 
ing (Surf City) Drawbridge; 

f4^ that portion of the Intracoastal Water 

way within 200 yard s of Scott s Hill 
Marina; 

(3) f#) those waters of the Northeast Cape 
Fear River between the U.S. Highway 
117 bridge and the Seaboard Coastline 
Railroad bridge. 

(b) Speed Limit. No person shall operate any 
motorboat or vessel at greater than no-wake speed 
v.'ithin the regulated areas described in Paragraph 
(a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Pender County is 
designated a suitable agency for placement and 
maintenance of the markers implementing this 
Rule, subject to the approval of the United States 
Coast Guard and the United States Army Corps of 
Engineers. 

Statuton- Authority G.S. 75A-3: 75A-15. 

.0330 CARTERET COUNTi 

(a) Regulated Areas. This Rule applies to the 
following waters in Carteret County: 

H^ that portion of the Intracoastal Water 

vx'uv within 200 foot on each side of the 
entrance to Sea Gate .Marina; 
( 1 ) (24 the waters of Money Island Slough 
beginning at the east end of Money 
Island near the Anchorage Marina Basin 
and ending at the west end of Money 
Island where Brooks A\enue deadends 



at the slough; 

(2) 0^ the waters of Taylor Creek located 
within the territorial limits of the Town 
of Beaufort; 

(3) i4j the waters of Pelletier Creek begin- 
ning at the entrance to Pelletier Creek 
at the Intracoastal Waterway and ending 
at U.S. Highway 70; 

(4) 0) the waters of Bogue Sound in 
Morehead City between Sugar Loaf 
Island and the seawall on the south side 
of Evans, Shepard and Shackleford 
Streets and bounded on the east by the 
State Ports Authority and on the west 
by the eastern right-of-way margin of 
South 13th Street extended; 

(5) f^ the waters of Gallant's Channel 
from the US 70 crossing over the 
Grayden Paul bridge to Taylor's Creek; 

(6) fT^ the waters of Cedar Island Bay and 
Harbor from U.S. 70 to Cedar Island 
Bay Channel Light 8; 

(7) (^ the waters of Radio Island Creek. 

(b) Speed Limit. It is unlawful to operate a 
motorboat or vessel at a speed greater than 
no-wake speed while on the waters of the regulated 
areas designated in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Carteret County, 
with respect to the regulated areas designated in 
Subparagraphs (1). (2), (4), (6), (7) and (8) of 
Paragraph (a) of this Rule, and the Board of 
Commissioners of the Town of Beaufort, with 
respect to the regulated area designated in Sub- 
paragraph (3) of Paragraph (a) of this Rule, and 
the Board of Commissioners of Morehead City, 
with respect to Subparagraph (5) of Paragraph (a) 
of this Rule, are designated as suitable agencies for 
placement and maintenance of the markers imple- 
menting this Rule, subject to the approval of the 
United States Coast Guard and the United States 
Army Corps of Engineers. 

Statutory Authority G.S. 75A-3: 75A-15. 

.0340 CURRITUCK COUNTY 

(a) Regulated Areas. This Rule applies to the 
waters and portion of waters described as follows: 
(1) Bell's Island. The waters contained in 
all the canals on Bell's Island. 

(-3-1 Intrnnnn 'j tiil W 



f2^ 



ef 



Intracoastal Waterway. — 1 he portion 
the — Intracoa s tal — Waterway vx'ithin the 
"slow speed" zone established by the 
L ' nited States Army Corp s of Engineer s 
on both side s of the U.S. Highway 15 8 



1664 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



PROPOSED RULES 



bridge at Coinjock. 

(2) 0) Walnut Island Subdivision. The 
waters in all the canals in the Walnut 
Island subdivision in the Village of 
Grandy. 

(3) (4) Neal's Creek Landing. Those 
waters of Currituck Sound within 50 
yards of Neal's Creek Landing as delin- 
eated by appropriate markers. 

(4} {&) Tull's Bay. 

(A) Those waters of Tull's Creek within 
50 yards upstream and 50 yards 
downstream of and within the canal 
leading to Tull's Bay Marina as 
delineated by appropriate markers. 

(B) Those waters which constitute the 
canals of the Tull's Bay Colony sub- 
division and 50 yards north along the 
Mississippi Canal from its intersection 
with Elizabeth Canal. 

(b) Speed Limit. No person shall operate any 
motorboat or vessel at greater than no-wake speed 
within any of the regulated areas described in 
Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Currituck County 
is designated a suitable agency for placement and 
maintenance of the markers implementing this 
Rule, subject to the approval of the United States 
Coast Guard and the United States Army Corps of 
Engineers. 

Statutory Authority G.S. 75A-3: 75A-15. 

fSotice is hereby given in accordance with G.S. 
1508-21. 2 that the North Carolina Wildlife Re- 
sources Comttiission intends to amend rules cited 
as 15A NCAC lOF .0310. .0313. 

1 he proposed effective date of this action is 
February 1, 1993. 

1 he public hearini.; will be conducted at 10:00 
a.m. on December 1 , 1992 at the Archdale Build- 
ing, Room 332, 512 N. Salisbury Street, Raleigh, 
NC 27604-1188. 

Ixeasons for Proposed Actions: 

15A NCAC 1 OF .0310 - To establish no wake zone 



in a bay where .speeding boats are causing a safety 
hazard. 

15A NCAC lOF .0313 - To establish a no wake 
zone on a portion of a canal to eliminate safety 
hazards caused by speeding boats. 

i^onmient Procedures: Interested persons inay 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
November 16, 1992 to December 16, 1992. Such 
written conunents must be delivered or mailed to 
the N.C. Wildlife Resources Commission, 512 N. 
Salisbury Street. Raleigh, NC 27604-1 188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0310 DARE COUNTY 

(a) Regulated Areas. This Rule applies to the 
following waters and portions of waters: 

(1) Manteo. Doughs Creek adjacent to 
Shallowbag Bay and all canals situated 
within the territorial limits of the Town 
of Manteo. 

(2) Hatteras. The waters of Hatteras Har- 
bor and Muddy Creek bounded on the 
north and south by the high-water 
mark, on the west by a straight line 
between channel markers number 20 
and 17, and on the east by the mouth of 
Muddy Creek at Sandy Bay; 

(3) Mann's Harbor. The waters of Ferry 
Dock Road Canal; 

(4) Nags Head 
Those waters contained within the 
canals of Old Nags Head Cove Devel- 
opment; 

The Roanoke Sound inlets at Pond 
Island on either side of Marina Drive 
extending north from US 64-264; 

(5) Wanchese. 
The waters of Wanchese Harbor; 
The Canal from its beginning where it 
connects with the Roanoke Sound 
south of the dead end road SR 1141 
extending northwest roughly parallel 



(A) 



(B) 



(A) 
(B) 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1665 



PROPOSED RULES 



to SR 1141 and SR 1 142, then west- 
ward roughly parallel to NC 345, and 
finally curving to the southwest 
roughly parallel to the C.B. Daniels 
Road to its end. 

(6) Stumpy Point Canal. That portion of 
Stumpy Point Canal beginning at the 
Wildlife Resources Commission boating 
access area and extending inland for a 
distance of 3,600 feet; 

(7) Stumpy Point Basin. That portion of 
the Stumpy Point Basin, at the head of 
the Stumpy Point Bay, which is next to 
Highway 264 in the dock area and 
designated by the appropriate markers. 

(8) fT) Town of Southern Shores. The 
waters contained in the canals and 
lagoons within the territorial limits of 
the Town of Southern Shores; 

(9) fS) Colinglon Harbour. The waters 
contained in the canals of Colington 
Harbour. 

(b) Speed Limit. No person shall operate any 
motorboat or vessel at greater than no-wake speed 
within any of the regulated areas described in 
Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. 
Subject to the approval of the L'nited States Coast 
Guard and the United States Army Corps of 
Engineers, the following agencies are designated 
suitable agencies for placement and maintenance of 
markers implementing this Rule as to the regulated 
areas listed in the several Subparagraphs of Para- 
graph (a) of this Rule: 

(1) the Board of Commissioners of the 
Town of Manteo as to the areas indicat- 
ed in Subparagraph (1); 

(2) the Board of Commissioners of Dare 
County as to the areas indicated in 
Subparagraphs (2) through (6) and (8); 

(3) the Board of Commissioners of the 
Town of Southern Shores as to the 
areas indicated in Subparagraph (7). 

Statutory Authority G.S. 75A-3: 75A-15. 

.0313 H\'DE COUNT\ 

(a) Regulated Areas. This Rule applies to the 
following waters in Hyde County: 

( 1 ) Swan Quarter Canal near the Town of 
Swan Quarter; 

(2) Carawan Canal; 

(3) The \».'aters within 50 yards of all public 
boat launching areas providing access to 
Pamlico Sound; 



(4) Far Creek near the Town of Engelhard; 

(5) Fodrey Canal. That portion of Fodrey 
Canal beginning at its entrance at the 
number 3 beacon and extending inland 
for a distance of 300 yards. 

(b) Speed Limit. No person shall operate a 
motorboat or vessel at greater than no-wake speed 
on the regulated areas described in Paragraph (a) 
of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Hyde County is 
designated a suitable agency for placement and 
maintenance of the markers implementing this 
Rule, subject to the approval of the United States 
Coast Guard and the United States Army Corps of 
Engineers. 

Statutory Authority G.S. 75A-3; 75A-15. 

TITLE 16 - DEPARTMENT OF 
PUBLIC EDUCATION 

iS otice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Education 
intend.s to repeal rules cited as 16 NCA C 6G . 0101 
- .0102; and amend rules cited as 16 NCAC 6G 
. 0301 - . 0302. 

1 he proposed effective date of this action is 
March 1, 1993. 

The public hearing for 16 NCAC 6G .0101 - 
.0102 will be conducted at 9:30 a.m. and for 16 
NCAC 6G .0301 - .0302 will be conducted at 
10:30a.m. on December 10, 1992 at the 3rd Floor 
Board Room. Education Bldg. .116 West Edenton 
Street. Raleigh. NC 27603-1712. 

Ixeasons for Proposed Actions: 

16 NCAC 6G .0101 - .0102 - Responsibility for 
these items has been transferred to the Department 
of Community Colleges. 

16 NCAC 6G .0301 - .0302 - Amendments make 
minor conforming changes as a result of recent 
legislation. 

K^omment Procedures: Any interested person may 
submit oral comments at the hearing or written 
comments by December 21 , 1992. 



1666 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



PROPOSED RULES 



CHAPTER 6 - ELEMENTARY AND 
SECONDARY EDUCATION 

SUBCHAPTER 6G - EDUCATION AGENCY 
RELATIONS 

SECTION .0100 - PRIVATE BUSEVESS AND 

TRADE SCHOOLS AND 

CORRESPONDENCE SCHOOLS 

.0101 LICENSING PROCEDURES 

(e^ — Any person who desires to operate a private 
business and trade school in the state or a private 
correspondence school which solicits students from 
this state must obtain a license from — the Depart 
mcnt. The Department will i ss ue a license on the 
basis of a completed application on forms supplied 
by the Department. 

(b) The applicant mu s t meet the requirements of 
G.S. I ISC 576 and must include with it s applica 
tion . 

{i-) copies of in s pection reports or letters 

from proper official s to s how that the 
building is safe and sanitary and meets 
ati — governmental — regulations — such — as 
fire, building and sanitation codes; and 

(5) a certified check or money order in an 

amount determined annually by the SBE 
and payable to the State Trea s urer. 

(c) A school may r e new its license by submitting 
a renewal application, on form s supplied by the 
Department, by June I of each year. — The fee for 
a renewal license i s determined annually by the 

ODCrr 

fd) — The school mu s t de s ignate a director or 
admini s trator, who is directly responsible for the 
operations of the s chool. — The director or adminis 
trator mu s t meet the following qualifications: 

fH be a graduate of an approved college or 

university; and 

Hj have teaching experience — in one or 

more of the major s ubjects taught in the 
school. 



Sruntion Aufhoriry- G.S. I15C-570(c). 

.0102 BUSESfESS SCHOOL 
REQUTREMENTS 

(a) Business schools may av.'ard the associate in 

applied — science — degree. The — credit — hours or 

clock hour equivalents — for this degree — are as 

follows: 



Advanced s ecretarial 



Airline secretarial 



-S4 
-S4 



Curriculum Area - 
Accounting 



Hours Required 

\m 



Automated 



accounting — 
Business administration 



-^ 



& 



data 



ectronic aata processing 
Executive secretarial 



Fashi ' 



jrchandi 



lion mercnandi s ing 

General business 

J- 



unior accounting — 

Legal secretarial 

Medical secretarial 



Profe s sional accounting 
Professional secretarial 



Secretarial 



Stenographic 

Transportation management 



4^ 
-^4 
-90 
-^4 

-9G 
-9G 

Am 
Am, 

-^^ 

4^ 



ihj — The Department will consider approving 
other courses at the written request of school s . 
The — Superintendent — of Public — Instruction — fftay 
award interim approval upon receipt of a certified 
statement of the school's intent to furnish qualified 
instructional personnel and nece s sary instructional 
equipment when it begins initial instruction and/or 
it furnishes "hands on" training. — The applicant 
must have been duly licen s ed and in continuous 
operation for at lea s t five years. — The applicant 
must certify' that it will return all funds paid by 
prospective enrollees if the course is not offered 
upon the advertised beginning date. 

Statutory Authority G.S. 115C-570(c). 



SECTION .0300 - PERFORMANCE-BASED 
ACCOUNTABILITY PROGRAM 

.0301 LOCAL SCHOOL IMPROVEMENT 
PLANS 

(a) Student performance goals must be stated in 
three to five year goals, including annual mile- 
stones to measure progress toward those goals. 
TTie purpose of these goals is to increase student 
performance. 

(b) Satisfactory progress toward meeting student 
performance goals is defined as achievement of 75 
percent of the annual milestones listed in the 
approved local school improvement plan. 

(c) LEAs that currently meet all or most of the 
performance standards of the state accreditation 
plan must set additional locally determined student 
performance goals. In setting these goals, the 
LEA must: 

(1) establish local student performance 
goals for any remaining state accredita- 
tion performance standards that it does 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1667 



PROPOSED RULES 



not currently meet; 

(2) establish some local student perfor- 
mance goals that are higher than the 
performance standards in state accredi- 
tation; and 

(3) establish, for school years after the 
LEA"s first year of participation, stu- 
dent performance goals in additional 
curricula areas and/or in additional 
grade levels not addressed in state 
accreditation. 

(d) LEAs that currently meet all or most of the 
performance standards of the state accreditation 
plan may also: 

(1) develop student performance goals in 
additional curricula areas not currently 
addressed in state accreditation; and 

(2) add additional indicators such as Cali- 
fornia Achievement Test scores at 
grades 4. 5 and 7. 

(e) The indicators that are included in the state 
accreditation performance standards, along with 
Scholastic Aptitude Test scores, are required for 
measuring and assessing student performance. 
Additional end of course and end of grade tests 
will be added to these indicators as they are 
developed. 

(f) LEAs may, but are not required to include as 
indicators for measuring and assessing student 
performance and satisfactory performance factors 
such as: 

(1) post-secondary plans; 

(2) enrollment in Algebra 1; and 

(3) college enrollees who require 
remediation. 

(g) LEAs that develop an evaluation instrument 
or approach other than the teacher performance 
appraisal instrument must describe that instrument 
or approach in the local school improvement plan. 



tendent, shall determine which certified staff 
members contributed to the attainment of those 
goals. The LEA will then distribute differentiated 
pay bonuses to those employees. A school-based 
committee that participates in the review of bonus 
distribution serves only in an advisory role to the 
principal, who bears the final responsibility for 
evaluating the performance of certified staff and 
deciding whom to recommend to the superinten- 
dent for bonus distribution. 

(c) fd) A school-based differentiated pay plan 
must include, at a minimum, all full-time certified 
staff in the participating schools. 

Statutory Aurhority G.S. 115C-238.1. 



Statutory Authority G.S. ] 15C'238. 1. 

.0302 DIFFERENTIATED PAY 

(a) No LEA may adopt a differentiated pay plan 
that includes an across-the-board salary supplement 
for all certified employees. 

fb) — The LEA may adopt a differentiated pay 
plan that includes some, but not all, s chools within 
the LEA. only if the plan is approved by a majori - 
ty of all eortit'ied in s tructional and inL i truetional 
support iitaff and of all certified administrators. 

(b) fe) After an LEA that uses the school-based 
performance model for differentiated pay attains 
local school goals, the local board of education, 
upon recommendation of the principal and superin- 



1668 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



PROPOSED RULES 



TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 



SECTION .0300 - PLANNING AND 
RESEARCH 



J\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to amend rules cited as 19A 
NCAC 2B .0309, .0312. 

1 he proposed effective date of this action is 
March 1, 1993. 

Instructions on How to Demand a Public Hearing 
(must he requested in writing within 15 days of 
notice): A demand for a public hearing must be 
made in writing and nuiiled to N. C. Department of 
Transportation, P.O. Box 25201. Raleigh, NC 
27611, Attn: Emily Lee. Tlw demand must be 
received within 15 days of this Notice. 

Kcasons for Proposed Actions: 

19A NCAC2B .0309 - Directs inquiries regarding 
planning fttnds to Manager of Statewide Planning 
rather than Planning & Research. 

19A NCAC 2B .0312 - Change reflects funding 
changes for Federal-aid matching funds pursuant 
to ISTEA formula. Federal funds have decreased 
from 85% to 80%, local funds required have 
increased from 15%o to 20%c. 

(comment Procedures: Any interested person may 
submit written conunents on the proposed rules by 
mailing the conmients to: N. C. Department of 
Transportation, P.O. Box 25201. Raleigh, NC 
27611 , Attn: Emily Lee within 30 days after the 
proposed rule is published or until the date of any 
public hearing held on the proposed rule, whichev- 
er is longer. 

riscal Note: Tliese Rules affect the expenditures 
or revenues of local funds. A fiscal not was 
submitted to the Fiscal Research Division of 
October 21, 1992, OSBM on October 21. 1992, 
N. C. League of Municipalities on October 21, 
1992, and N.C. Association of County Commis- 
sioners on October 21, 1992. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SL1BCHAPTER 2B - HIGHWAY PLANNING 



.0309 SOURCE AND PURPOSE - PL FUNDS 

The North Carolina Department of Transporta- 
tion is responsible for administering the Metropoli- 
tan Planning Funds established by the 1973 
Federal- Aid Highway Act. These funds are for the 
purpose of carrying out the provisions of 23 
U.S.C. 134, relating to transportation planning in 
urban areas. Funds are apportioned to the state in 
the ratio which the population in urbanized areas 
bears to the total population in such urbanized 
areas in all the states as shown by the latest avail- 
able census. Inquiries about these funds should be 
directed to Manager of Planning and Re s earch. 
Statewide Planning. North Carolina Division of 
Highways, Raleigh. 27611. 

Authority 23 U.S.C 104(f): 23 U.S.C. 134: G.S. 
136-18(12): 143B-350(f).(g). 

.0312 MATCHING - PL FUNDS 

The federal share payable on account of work 
performed using PL funds shall be 85 80 percent. 
The remaining -l-§ 20 percent is local money 
provided by the urbanized area and may be in the 
form of "like work." 

Authority 23 U.S.C. 104(f): 23 U.S.C. 134; G.S. 
136-18(12); ]43B-350(f),(g). 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARD 

IS otice is hereby given in accordance with G.S. 
1508-21. 2 that the N. C State Board of Cosmetic 
Art Examiners intends to adopt rule cited as 21 
NCAC 14H .0019. 

1 he proposed effective date of this action is 
February' 1, 1993. 

1 he public hearing will he conducted at 1:00 
p.m. on December 14. 1992 at the Grove Towers, 
5th Floor. 1110 Navaho Dr.. Raleigh, N.C. 
27609. 

ixeason for Proposed Action: To keep records 
up-to-date. 

(comment Procedures: Tlie record shall be open 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1669 



PROPOSED RULES 



for 30 days to receive written comments. Written 
comments should be received by the N. C. State 
Board of Cosmetic Art Examiners by December 10, 
1992. to be considered as part of the hearing 
record. Comtnents should be addressed to Vicky 
R. Goudie, Executive Secretary. N. C. State Board 
of Cosmetic Art Examiners, 1110 Navaho Dr., 
Raleigh. N.C 27609. Requests to speak must be 
in writing and received by December 8, 1992 prior 
to hearing. Speaking time 10 minutes. 

CHAPTER 14 - BOARD OF COSMETIC 
ART EXL\.\nXERS 

SL'BCILAPTER 14H - SANITATION 

.0019 NOTICE TO BO-\RD 

(a) Each cosmetologist, apprentice cosmetolo- 
gist, manicurist. cosmetolog\ teacher, and mani- 
curist teacher shall notif\' the Board within 10 days 
ot" each change in the licensee's residence or place 
of business. Notice shall be gi\en in one of the 
following ways: 

(I) by depositing written notice in the 
United States mail with the correct 
address and postage: 
by personalis' deli\'ering written notice 
to the Board's offices: 
by telephone or fax transmission (fol- 
lowed by written notice that must be 
actualh' recei\ed in the Board's office 
within 30 days of the change), 
("b) Each beautN' establishment shall notif\' the 
Board within 10 davs of the das' an\' person H; 
censed by the Board either begins work or ceases 
work in that beaut\' establishment. Notice may be 
given in an\' of the ways listed in Paragraph (a) of 
this Rule. 



{2) 



(3) 



Statuton,- Auth(>rit\ G.S. 88-23: 



1670 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



LIST OF RULES CODIFIED 



1 he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated. 


Key: 




Citation 


- Title, Chapter, Subchapter and Rule(s) 


AD 


= Adopt 


AM 


= Amend 


RP 


= Repeal 


With Chgs 


= Final text differs from proposed text 


Eff. Dare 


= Date rule becomes effective 


Temp. Expires 


= Rule was filed as a temporary^ rule and expires on this date or 180 days 



NORTH CAROLINA ADMINISTRATIVE CODE 



JUNE, JULY, AUGUST, SEPTEMBER 1992 



[TLE 


DEPARTMENT 


TITLE 


1 


Administration 


21 


2 


Agriculture 




4 


Economic and Community 
Development 




5 


Correction 




10 


Human Resources 




11 


Insurance 




12 


Justice 




13 


Labor 




15A 


Environment, Health, 
and Natural Resources 




16 


Education 


24 


17 


Revenue 




18 


Secretary of State 


25 


19A 


Transportation 


26 



DEPARTMENT 

Occupational Licensing Boards 
8 - CPA Examiners 
12 - General Contractors 
14 - Cosmetic Art Examiners 
17 - Dietetics/Nutrition 
19 - Electrolysis 
34 - Mortuary Science 
36 - Nursing 
46 - Pharmacy 
64 - Speech and Language Pathologists 

and Audiologists 
Independent Agencies 
1 - Housing Finance 
Personnel 
Administrative Hearings 



Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


1 NCAC 4G .0223 










08/01/92 




38 .0101 - .0105 










10/01/92 




.0201 - .0204 










10/01/92 




.0206 - .0207 










10/01/92 




.0301 - .0308 










10/01/92 




.0401 - .0411 










10/01/92 







7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1671 



LIST OF RULES CODIFIED 








Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.0501 - .0502 


■ 






■ 


10/01/92 




1 NCAC 38 .0601 - .0603 


■ 






■ 


10/01/92 




2 NCAC 34 .0101 










08/03/92 




.0102 








■ 


08/03/92 




.0302 








■ 


08/03/92 




.0313 








■ 


08/03/92 




.0318 








■ 


08/03/92 




.0329 


■ 








08/03/92 




.0407 - .0408 


■ 






■ 


08/03/92 




.0601 










08/03/92 




.0602 








■ 


08/03/92 




.0604 - .0605 








■ 


08/03/92 




.1001 










08/03/92 




.1201 










08/03/92 




.1206 










08/03/92 




42 .0102 








■ 


09/01/92 




.0201 








■ 


09/01/92 




.0801 








■ 


09/01/92 




.0802 - .0803 










09/01/92 




.0804 








■ 


09/01/92 




.0805 - .0806 










09/01/92 




4 NCAC IK .0101 - .0105 










07/20/92 


180 DAYS 


.0201 - .0206 










07/20/92 


180 DAYS 


.0301 - .0302 










07/20/92 


180 DAYS 


.0401 - .0403 










07/20/92 


180 DAYS 


2R .0702 




■ 






07/06/92 




.1205 






■ 




07/01/92 




2S .0503 




■ 






07/06/92 




19L .1401 - .1405 






■ 




07/20/92 


180 DAYS 


19S .0102 


■ 








07/17/92 


180 DAYS 


.0105 


■ 








07/17/92 


180 DAYS 


.0601 - .0603 


■ 








07/17/92 


180 DAYS 


5 NCAC 2D .0307 




■ 




■ 


10/01/92 







1672 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



LIST OF RULES CODIFIED 








Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.0309 




■ 




■ 


10/01/92 




5 NCAC 2F .1504 -.1506 




■ 






08/03/92 




10 NCAC 3B .0801 - .0802 


■ 








08/03/92 




.0803 - .0804 


■ 






■ 


08/03/92 




.0805 


■ 








08/03/92 




.0806 


■ 






■ 


08/03/92 




3H .0108 




■ 




■ 


08/03/92 




.0221 


■ 








08/03/92 




.0315 




■ 






08/03/92 




.0705 




■ 




■ 


08/03/92 




.0709 




■ 




■ 


08/03/92 




3R .3001 


■ 








05/31/92 


180 DAYS 


.3010 


■ 








05/31/92 


180 DAYS 


.3020 


■ 








05/31/92 


180 DAYS 


.3020 




■ 






07/23/92 


180 DAYS 


.3030 


■ 








05/31/92 


180 DAYS 


.3030 




■ 






07/23/92 


180 DAYS 


.3040 


■ 








05/31/92 


180 DAYS 


14C .1007 






■ 




10/01/92 




.1009 






■ 




10/01/92 




.1010 








■ 


10/01/92 




.1014 










10/01/92 




14K .0103 








■ 


08/03/92 




.0210 










08/03/92 




.0315 










08/03/92 




14M .0410 










08/03/92 




.0704 










07/01/92 




22Q .0101 - .0102 


■ 








08/03/92 




.0103 




■ 




■ 


08/03/92 




.0202 


■ 








08/03/92 




22R .0101 


■ 








08/03/92 




.0201 - .0203 


■ 








08/03/92 




.0301 


■ 








09/01/92 







7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1673 



LIST OF RULES CODIFIED 








Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.0302 


■ 








08/03/92 




10 NCAC 25 .0102 




■ 






08/03/92 




26B .0122 


■ 








10/01/92 




.0201 




■ 






10/01/92 




.0206 - .0207 




■ 






10/01/92 




26D .0008 






■ 




10/01/92 




.0016 




■ 






09/15/92 


180 DAYS 


26H .0102 




■ 






07/01/92 


12/31/92 


.0303 




■ 






07/01/92 


12/31/92 


.0601 - .0602 




■ 






10/01/92 




.0605 




■ 






10/01/92 




26M .0101 - .0102 


■ 








08/03/92 




.0103 - .0105 


■ 






■ 


08/03/92 




.0201 


■ 








08/03/92 




.0202 


■ 






■ 


08/03/92 




.0203 


■ 








08/03/92 




42C .2303 




■ 






08/03/92 




46D .0301 


■ 






■ 


07/01/92 




.0302 - .0303 


■ 








07/01/92 




.0304 - .0306 


■ 






■ 


07/01/92 




50A .0305 




■ 




■ 


09/01/92 




SOB .0402 




■ 




■ 


09/01/92 




11 NCAC 1 .0103 




■ 




■ 


07/01/92 




.0106 






■ 




08/03/92 




.0201 




■ 






07/01/92 




.0203 






■ 




07/01/92 




.0204 




■ 






07/01/92 




.0209 


■ 








07/01/92 




.0301 




■ 






07/01/92 




.0401 




■ 






07/01/92 




.0402 






■ 




08/03/92 




.0403 




■ 






07/01/92 




.0405 






■ 




07/01/92 







1674 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.0407 - .0411 






■ 




07/01/92 




11 NCAC 1 .0413 - .0414 


■ 






■ 


07/01/92 




.0415 - .0425 


■ 








07/01/92 




.0426 


■ 






■ 


08/03/92 




.0427 - .0430 


■ 








07/01/92 




.0603 










07/01/92 




5 A .0501 - .0504 










07/01/92 




.0505 








■ 


07/01/92 




.0507 










07/01/92 




.0508 








■ 


08/03/92 




.0510 










07/01/92 




8 .0602 








■ 


10/01/92 




.0911 


■ 








07/01/92 




10 .0601 






■ 




07/01/92 




.0602 - .0603 








■ 


08/03/92 




.1601 








■ 


07/01/92 




12 .0820 








■ 


08/03/92 




.0821 - .0822 










08/03/92 




.0824 










08/03/92 




.0830 








■ 


08/03/92 




17 .0001 - .0006 










07/01/92 




18 .0001 










07/01/92 




.0002 








■ 


08/03/92 




.0003 










07/01/92 




.0004 








■ 


08/03/92 




.0005 - .0015 










07/01/92 




.0016 








■ 


08/03/92 




.0017 - .0018 










07/01/92 




12 NCAC 4F .0601 




■ 




■ 


10/01/92 




.0602 








■ 


10/01/92 




.0603 










10/01/92 




.0604 








■ 


10/01/92 




1 1 .0202 




■ 






08/03/92 







7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1675 



LIST OF RULES CODIFIED 








Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


13 NCAC IC .0101 










06/22/92 




13 NCAC 7C .0101 










08/26/92 




.0101 










09/04/92 




.0102 










08/26/92 




I5A NCAC IJ .0102 










07/01/92 




.0204 










07/24/92 




.0301 










07/01/92 




.0302 










07/24/92 




.0304 










07/01/92 




.0401 










07/01/92 




.0701 










07/24/92 




.0702 - .0703 










07/01/92 




.0803 








■ 


07/01/92 




.0902 - .0904 










07/01/92 




.0905 


■ 








07/01/92 




.1002 










07/01/92 




2B .0302 -.03 11 








■ 


08/03/92 




.0313 








■ 


08/03/92 




.0315 - .0317 








■ 


08/03/92 




2D .0524 - .0525 








■ 


07/01/92 




.0538 


■ 






■ 


09/01/92 




.1002 










07/01/92 




.1104 








■ 


09/01/92 




.1301 - .1304 


■ 








09/01/92 




.1305 


■ 






■ 


09/01/92 




2G .0601 - .0602 


■ 






■ 


09/01/92 




2H .0101 










08/03/92 




.0103 








■ 


08/03/92 




.0126 








■ 


08/03/92 




.0138 










08/03/92 




.0610 








■ 


09/01/92 




. 1 203 










08/03/92 




. 1 205 










08/03/92 







1676 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



LIST OF RULES CODIFIED 








Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.1206 


■ 






■ 


08/03/92 




15A NCAC 2L .0106 








■ 


09/01/92 




.0202 








■ 


09/01/92 




2M .0102 










07/01/92 




.0303 








■ 


07/01/92 




.0602 - .0604 










07/01/92 




.0701 - .0702 










07/01/92 




2N .0707 








■ 


09/01/92 




20 .0101 - .0103 


■ 








07/01/92 




.0201 - .0204 


■ 






■ 


07/01/92 




.0301 


■ 








07/01/92 




.0302 


■ 






■ 


08/03/92 




.0303 - .0307 


■ 








07/01/92 




.0308 


■ 






■ 


07/01/92 




.0309 - .0310 


■ 








07/01/92 




.0401 


■ 








07/01/92 




.0402 


■ 






■ 


07/01/92 




.0501 - .0502 


■ 








07/01/92 




.0503 


■ 






■ 


07/01/92 




.0504 


■ 








07/01/92 




31 .0011 




■ 




■ 


10/01/92 




.0013 


■ 








10/01/92 




3J .0301 




■ 




■ 


10/01/92 




3K .0206 


■ 






■ 


10/01/92 




3M .0501 




■ 




■ 


10/01/92 




.0509 


■ 








10/01/92 




30 .0204 - .0205 




■ 






10/01/92 




.0208 




■ 




■ 


10/01/92 




.0211 


■ 






■ 


10/01/92 




3R .0008 




■ 




■ 


10/01/92 




6E .0007 




■ 




■ 


07/01/92 




7H .0208 - .0209 




■ 






08/03/92 




.0302 




■ 






10/01/92 







7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1677 



LIST OF RULES CODIFIED 








Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.0303 








■ 


10/01/92 




\i\ NCAC 7H .0306 








■ 


06/19/92 




.0306 










10/01/92 




.0308 










08/03/92 




.0601 










10/01/92 




.0602 








■ 


10/01/92 




.0603 










10/01/92 




.0605 










10/01/92 




7M .1101 


■ 








10/01/92 




.1102 


■ 






■ 


10/01/92 




lOB .0203 










07/01/92 




.0209 










07/01/92 




.0305 










07/01/92 




IOC .0205 








■ 


10/01/92 




.0305 










10/01/92 




lOD .0003 










07/01/92 




lOE .0004 








■ 


09/01/92 




lOF .0307 










10/01/92 




.0318 










10/01/92 




.0355 










10/01/92 




1 1 .0352 








■ 


10/01/92 




13A .0001 










10/01/92 




.0009 








■ 


10/01/92 




.0010 










10/01/92 




13B .1204 








■ 


10/01/92 




16A .0109 










07/06/92 


01/02/93 


.0109 








■ 


10/01/92 




.0401 










09/18/92 


ISO DAYS 


.0402 - .0412 






■ 




09/18/92 


180 DAYS 


.0413 - .0427 


■ 








09/18/92 


180 DAYS 


ISA .0101 - .0132 






■ 




10/01/92 




.0135 


■ 






■ 


10/01/92 




.0136 - .0138 


■ 








10/01,/92 







1678 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.0139 - .0182 


■ 






■ 


10/01/92 




15A NCAC 18A .1016 








■ 


10/01/92 




.2509 








■ 


07/01/92 




.2513 










07/01/92 




.2518 








■ 


07/01/92 




.2520 






■ 




07/01/92 




.2522 










07/01/92 




.2523 - .2524 








■ 


07/01/92 




.2526 










07/01/92 




.2528 










07/01/92 




.2530 








■ 


07/01/92 




.2532 










07/01/92 




.2535 








■ 


07/01/92 




.2537 


■ 






■ 


07/01/92 




.2538 


■ 








05/01/93 




.2607 










07/01/92 




.2610 








■ 


07/0192 




.2624 










07/01/92 




.2710 










07/01/92 




.2822 








■ 


07/23/92 




.2824 - .2825 










07/23/92 




.2832 








■ 


07/23/92 




.3101 








■ 


07/01/92 




18C .0403 








■ 


07/01/92 




.1507 








■ 


10/01/92 




.1607 










10/01/92 




.1614 










10/01/92 




18D .0105 










08/03/92 




.0201 








■ 


08/03/92 




.0203 








■ 


08/03/92 




.0205 








■ 


08/03/92 




.0301 










08/03/92 




.0304 










08/03/92 







7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1679 



LIST OF RULES CODIFIED 



Citation 


.\D 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.0307 


■ 






■ 


08/03/92 




15A NCAC 18D .0403 




■ 




■ 


08/03/92 




19.A .0201 




■ 






10 01 92 




.0202 




■ 




■ 


10/01/92 




.0206 - .0207 


■ 






■ 


10/01/92 




.0502 




■ 






08/26/92 




^)^'■)^ 






■ 




08 26 92 




15.A NCAC 19A .0701 
transferred and recodified to 
15A NCAC 16A .1001 










08/10 '92 




19H .0401 










07/01/92 




.0402 










09/01/92 




.0403 










07/01/92 




.0601 








■ 


0701 92 




.0903 










07 '01 92 




21A .0819 










07'01/92 




21 B .0303 










07/01/92 




21C .0201 - .0207 






■ 




10/01 '92 




24 A .0402 










07/06/92 


01 '02 93 


.0402 










10/01 '92 




.0403 










07 06 92 


01 02 93 


0403 










10 01 92 




24C .0001 


■ 








07 01 92 




25 .0213 










10/0192 




16 NCAC 6B .0004 








■ 


07/01/92 




6C .0402 










07/01/92 




r NCAC 5C .2501 - .2504 






■ 




10 '01 '92 




68 .0107 










10 01 92 




-iM 15 - .01 r 










1001 92 




.1J612 


■ 








09/01/92 




.3406 










10/01./92 




9G .0107 










09/01/92 




9H .0105 










09 '01 '92 




.0208 










08/03 92 





< 



I 



( 



1680 



7:16 



NORTH CAROLINA REGISTER 



November 16. 1992 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.0305 




■ 






08/03/92 




IS NCAC 8 .1101 








■ 


08/03/92 




.1102 










08/03/92 




.1103 








■ 


08/03/92 




.1104 










08/03/92 




19A NCAC 3B .0801 










07/01/92 




3D .0515 










07/01/92 




.0801 










07/01/92 




.0801 








■ 


08/03/92 




21 NCAC 8A .0301 










09/01/92 




SG .0101 










09/01/92 




.0102 










10/01/92 




8H .0001 










09/01/92 




12 .0408 








■ 


09/01/92 




.0503 










09/01/92 




14L .0105 










08/03/92 




17 .0012 








■ 


08/03/92 




.0014 








■ 


07/01/92 




.0016 










07/16/92 


180 DAYS 


19 .0301 - .0302 










08/03/92 




.0303 








■ 


08/03/92 




21 NCAC 34C .0201 
transferred and recodified to 
21 NCAC 34C .0202 










07/07/92 




21 NCAC 34C .0202 
transferred and recodified to 
21 NCAC 34C .0201 










07/07/92 




36 .0203 










08/03/92 




.0211 










08/03/92 




.0218 










08/03/92 




.0219 








■ 


08/03/92 




.0223 








■ 


10/01/92 




.0325 


■ 








10/01/92 




46 .1806 




■ 




■ 


07/01/92 





7:76 



NORTH CAROLINA REGISTER 



November 16, 1992 



1681 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


64 .0208 


■ 








10,/01/92 




24 NCAC IN .0201 


■ 








07/01/92 




24 NCAC IN .0202 


■ 








08/03/92 




.0203 - .0204 


■ 








07/01/92 




25 NCAC lA .0006 




■ 






08/03/92 




IC .0501 - .0504 




■ 






10'01/92 




IE .0804 




■ 




■ 


10/01/92 




.0806 - .0807 




■ 






10/01/92 




.0810 - .0811 






■ 




10/01 92 




.0812 




■ 






10/01/92 




.0813 






■ 




10/01/92 




.0815 




■ 






10/01/92 




.0817 - .0819 




■ 






10/01/92 




.0820 


■ 








10/01/92 




.1301 - .1306 




■ 




■ 


09/01/92 




.1307 






■ 




08/03/92 




IH .0602 




■ 




■ 


08/03/92 




.0603 






■ 




08/03/92 




.0616 - .0617 




■ 






08/03/92 




.0621 




■ 






08/03/92 




11 .0102 










08/03/92 




.0201 - .0206 










08/03/92 




.0302 - .0316 










08/03/92 




.0401 - .0402 










08/03/92 




.0501 - .0511 










08/03/92 




.0601 - .0606 










08/03/92 




.0701 - .0708 










08/03/92 




.1001 - .1002 










08/03/92 




.1005 










08/03/92 




.1007 










08/03/92 




.1009 - .1013 










08/03/92 




.1103 










08/03/92 




25 NCAC 11 .1201 - .1204 










08/03/92 







1682 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Eff. 
Date 


Temp. 
Expires 


.1206 - .1210 










08/03/92 




.1315 










08/03/92 




.1402 - .1403 










08/03/92 




.140? - .1413 










08/03/92 




.1,501 - .1508 










08/03/92 




.1601 - .1603 










08/03/92 




.1701 










08/03/92 




.1702 








■ 


09/01/92 




.1703 - .1704 










08/03/92 




.1801 - .1806 










08/03/92 




.1901 










08/03/92 




.1402 








■ 


08/03/92 




. 1 903 








■ 


09/01/92 




.1904 - .1905 










08/03/92 




.2001 - .2005 










08/03/92 




.2101 - .2107 










08/03/92 




.2201 










08/03/92 




.2301 










08/03/92 




.2302 








■ 


08/03/92 




.2303 - .2308 










08/03/92 




.2401 - .2406 








■ 


09/01/92 




.2407 - .2410 








■ 


10/01/92 




IJ .1005 










08/03/92 




26 NCAC 2A .0211 




■ 






07/01/92 




2B .0103 




■ 






07/01/92 




3 .0001 




■ 






07/01/92 





7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1683 



RRC OBJECTIONS 



1 he Rules Review Cointnission (RRC) objected to the following rules in accordance with G.S. 
I43B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 

Motor Fleet Management Division 

/ NCAC 38 .0205 - Accident Reporting 
Agenc}' Revised Rule 

AGRICULTURE 

Structural Pest Control Division 

2 NCAC 34 .0406 - Spill Control 

Agency Responded 

Agency Revised Rule 
2 NCAC 34 .0603 - Waivers 

Agency Responded 

Agency Revised Rule 
2 NCAC 34 .0902 - Financial Responsibility 

Agency Responded 

Agency Revised Rule 

ECONOMIC AND COMMUNITY' DEVELOPMENT 

Communitv Assistance 



RRC Objection 
Obj. Removed 



RRC Objection 
No Action 
Obj. Removed 
RRC Objection 
No Action 
Obj. Removed 
RRC Objection 
No Action 
Obj. Removed 



09/17/92 
10/15/92 



07/16/92 
08/20/92 
10/15/92 
07/16/92 
08/20/92 
10/15/92 
07/16/92 
08/20/92 
10/15/92 



4 NCAC 19S .0101 - Overview and Purpose 

4 NCAC 19S .0102 - Definition 
Waiver 

Prohibited Costs 
Distribution cf Funds 
Grant Agreement 



4 NCAC 19S .0103 
4 NCAC 19S .0202 
4 NCAC 19S .0401 
4 NCAC 19S .1101 



Agency Revised Rule 
ENVIRONMENT. HEALTH. AND NATURAL RESOURCES 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
Obj. Renwved 



10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 



Departmental Rules 

15A NCAC IJ .0204 - Loans from Emergency Revolving Loan Accounts 

15A NCAC U .0302 - General Provisions 

15A NCAC U .0701 - Public Necessity-: Health: Safety and Welfare 

Environmental Management 

15A NCAC2H .0801 - Purpose 

Agency Revised Rule 
15A NCAC 2H .0803 - Definitions 

Agency Revised Rule 
15A NCAC 2H .0805 - Certification and Renewal of Certification 



RRC Objection 06/18/92 
RRC Objection 06/18/92 
RRC Objection 06/18/92 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 



10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 



1684 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



RRC OBJECTIONS 



Agency Revised Rule 
15A NCAC2L .0107 - Compliance Boundary 

Agency Revised Rule 
ISA NCAC 20 .0302 - Self Insurance 

Wildlife Resources and Water Safety 

15A NCAC 101 .0001 - Definitions 
HUMAN RESOURCES 



RRC Objection 10/15/92 

RRC Objection 10/15/92 

Ohj. Removed 10/15/92 

RRC Objection 06/18/92 



RRC Objection 10/15/92 



Facility Services 

10 NCAC 3R . 3001 - Certificate of Need Review Categories RRC Objection 10/15/92 

Agency Revised Rule Obj. Removed 10/15/92 

Individual and Family Support 

10 NCAC 42C .3601 - Administrative Penalty Determination Process RRC Objection 10/15/92 

Agency Revised Rule Obj. Removed 10/15/92 

10 NCAC 42T .0001 - Definitions RRC Objection 10/15/92 

10 NCAC 42T . 0006 - Service Delivery RRC Objection 10/15/92 

Agency Revised Rule RRC Objection 10/15/92 

Mental Health: General 

10 NCA C 14C .1115 - Funding Group Homes for Mentally Retarded Adults RRC Objection 08/20/92 

Agency Revised Rule Obj. Removed 10/15/92 

10 NCAC 14K .0216 - Waiver of Licensure Rules RRC Objection 10/15/92 

Agency Revised Rule Obj. Removed 10/15/92 

10 NCA C 14T . 0101 - Scope RRC Objection 10/15/92 

Agency Revised Rule Obj. Removed 10/15/92 

10 NCAC 14T .0103 - Advance Care Directives RRC Objection 10/15/92 

Agency Revised Rule Obj. Removed 10/15/92 

Mental Health: Other Programs 

10 NCAC 18D .0117 - Purpose and Scope RRC Objection 10/15/92 

Agency Revised Rule Obj. Removed 10/15/92 

INDEPENDENT AGENCIES 

N.C. Housing Finance Agency 



24 NCAC IM 


.0202 


24 NCAC IM 


.0204 


24 NCAC IM 


.0205 


24 NCAC IM 


.0206 


24 NCAC IM 


.0301 


24 NCAC IM 


.0302 


24 NCAC IM 


.0303 


24 NCAC IM 


.0306 


24 NCAC IM 


.0401 


24 NCAC IM 


.0402 


24 NCAC IM 


.0403 



Eligibility 

Selci til >n Proi edures 
Administration 
Program Fees 
Goal and Objectives 
Eligibility Recjuirements 
Tlireshold Review Criteria 
Funding Commitment 
Goals and Objectives 
Eligibility Recjuirements 
Tlireshold Review Criteria 



RRC 
RRC 
RRC 
RRC 
RRC 
RRC 
RRC 
RRC 
RRC 
RRC 
RRC 



Objection 
Objection 
Objection 
Objection 
Objection 
Objection 
Objection 
Objection 
Objecticm 
Objection 
Objection 



10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1685 



RRC OBJECTIONS 



24 NCAC JM .0404 - Ranking Criteria 

24 NCAC IM .0405 - Agency Board Approval 

24 NCAC lO .0101 - Purpose 

24 NCAC lO .0102 - EUgihility 

24 NCAC lO .0201 - Application Procedure.'^ 

24 NCAC lO .0202 - Selection Procedures- 

24 NCAC lO .0203 - Administration 

INSURANCE 

Multiple Employer Welfare Arrangements 

11 NCAC 18 .0019 - Description of Fornv; 
Seniors' Health Insurance Information Program 

11 NCAC 17 .0005 - SHI IP Inquiries to Insurers and Agents 
JUSTICE 

General Statutes Commission 

12 NCAC 8 .0506 - Declaratory Rulings 
LABOR 

Occupational Safety and Health Act 

13 NCAC 7C .0108 - Building Code 

Rule Returned to Agency 
Agency Filed Rule with OAH 
13 NCAC 7C .0109 - Fire Prevention Code 
Rule Returned to Agency 
Agency Filed Rule with OAH 

LICENSING BOARDS AND COMMISSIONS 

Professional Engineers and Land Surveyors 

21 NCAC 56 .0501 - Re</uirement for Licensing 

Agency Revised Rule 
21 NCAC 56 .0502 - Application Procedure: Individual 

Agency Revised Rule 
21 NCAC 56 .0701 - Rules of Professional Conduct 

Agency Revised Rule 
21 NCAC 56 .1603 - Classification of Surveys 

Agency Revised Rule 
21 NCAC 56 . 1604 - Mapping Requirements 

Agency Revised Rule 
21 NCAC 56 .1605 - Classification cf Topographic Surveys 

,4genc\ Revised Rule 

REVENXIE 

Individual Income, Inheritance and Gift Tax Division 



RRC 
RRC 
RRC 
RRC 
RRC 
RRC 
RRC 



Objection 
Objection 
Objection 
Objection 
Objection 
Objection 
Objection 



10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 



RRC Objection 10/15/92 



RRC Objet tion 09/1 7/92 

10/15/92 

Eff. 10/22/92 

RR C Objection 09/1 7/92 

10/15/92 

Eff. 10/22/92 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj Removed 



10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 
10/15/92 



1686 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



RRC OBJECTIONS 



17 NCAC 3B .0401 - Penalties 
1 7 NCA C 3B . 0402 - Interest 



RRC Objection 
RRC Objection 



08/20/92 
08/20/92 



Individual Income Tax Division 



17 NCAC 6B .0107 - Extensions 

17 NCAC 68 .0115 - Additions to Federal TcLxahlc Income 

17 NCAC 6B .0116 - Deductions from Federal Taxable Income 

1 7 NCA C 6B .0117 - Transitional Adjustments 

1 7 NCAC 6B . 3406 - Refunds 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 



TRANSPORTATION 



Division of Highways 

19A NCAC 2B .0164 - Use of Right of Way Consultants 

Agency Revised Rule 
19A NCAC 2B .0165 - Asbestos Contracts with Private Firms 

Agency Revised Rule 



RR C Objection 09/1 7/92 

Obj. Removed 10/15/92 

RRC Objection 08/20/92 

Obj. Removed 10/15/92 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1687 



RULES INVALIDATED BY JUDICIAL DECISION 



1 Ills Section of the Register lists the recent decisions issued by the North Carolina Supreme Court. 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the Worth Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West. Administrati\e Law Judge with the Office of Administrative Hearings, declared tv.o portions 
of Rule 1 NCAC 5A .0010 \'oid as applied in Stauffer Information Systems. Petitioner v. Tlie North Carolina 
Department of Community Colleges and Tlte North Carolina Department of Administration , Respondent and 
Tlie Universit}- cf Southern California. Intervenor-Respondent (92 DO A 0666). 

15A NCAC 19A .0202(d) (10) - CONTROL MEASURES - fflV 

Brenda B. Becton. Administrati\e Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)( 10) void as applied \n ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe. Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine. as Assistant Secretary of Health and State Health Director for the Department of Environment. 
Health, and Natural Resources of the State of North Carolina. William Cobey. as Secretary of the Department 
of Environment. Health, and Natural Resources of the Slate of North (Carolina, Dr. Rebecca Meriwether, as 
Chief. Communicable Disease Control Section of the North (Carolina Department of Environment, Health, and 
Natural Resources. Wayne Bobhiit Jr. . as Chief of the HIV/STD Control Branch of the North Carolina 
Department cf Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



( 



1688 7:16 NORTH CAROLINA REGISTER November 16, 1992 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent ccmtested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies cf the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Commission DST 

BDA Board of Dental Examiners EDC 

BME Board of Medical Examiners EHR 

BMS Board of Mortuary Science 

BOG Board of Geologists ESC 

BON Board of Nursing HAF 

BOO Board of Opticians HRC 

CFA Commission for Auctioneers IND 

COM Department of Economic and Community INS 

Development LBC 

CPS Department of Crime Control and Public Safety MLK 

CSE Child Support Enforcement NHA 

DAG Department of Agriculture OAH 

DCC Department of Community Colleges OSP 

DCR Department of Cultural Resources PHC 

DCS Distribution Child Support 

DHR Department of Human Resources POD 

DOA Department of Administration SOS 

DOJ Department of Justice SPA 

DOL Department of Labor 

DSA Department of State Auditor WRC 



Department of State Treasurer 
Department of F\iblic Instruction 
Department of Environment, Health, and 
Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters Board 
Human Relations Committee 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administrators 
Office of Administrative Hearings 
Office of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and Language 
Pathologists and Audiologists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Anne R. Gwaltney, Milton H. Askew, Jr. 
and Anna L. Askew 

V. 

EHR and Pamlico County Health Department 


89 DHR 0699 


Reilly 


07/17/92 


Eleanor R. Edgerton-Taylor 

V. 

Cumberland County Department of Social Services 


89 OSP 1141 


Morrison 


08/18/92 


Annette Carlton 

v. 

Cleveland County Department of Social Services 


90 OSP 0024 


Chess 


08/14/92 


Janice Parker Haughton 

v. 

Halifax County Mental Health, Mental Retardation. 

Substance Abuse Program 


90 OSP 0221 


West 


08/18/92 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1689 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLTVIBER 


ALJ 


FILED 
DATE 


Carolina Water Service, Inc. 

V. 

EHR, Division of En\'ironmental Management 


90 EHR 0415 


West 


09/11/92 


CSX Transportation. Inc. 

\'. 

Department of Environment. Health. & Natural Resources 


90 EHR 0628 


Reilly 


07/17/92 


Bruce Keeter 
Beaufort County Health Department 


90 EHR 0666 


Morgan 


07/28/92 


R. Anthony White 

v. 

Department of Human Resources 


90 CSE 0756 


Morgan 


10/05/92 


Christine Hill 
Crime Victims Compensation Commission 


90 CPS 0876 


Morgan 


08/24/92 


Tommy D. Hunt 

V. 

Department of Correction 


90 OSP 1011 


Morgan 


10/05/92 


Cherokee Resources. Inc. 

y . 

EHR. Di\ision of Environmental Management 


90 EHR 1075 


West 


10/19/92 


Leslie W. Hall 

V. 

EHR. Division of Marine Fisheries 


90 EHR 1 397 


Gray 


10/13/92 


JHY Concord. Inc. 
Department of Labor 


90 DOL 1 42 1 


Morgan 


07/28/92 


Lick Fork Hills. Inc., Marion Bagwell. President 

V. 

Department of Environment. Health, & Natural Resources 


91 EHR 0023 


Morgan 


07/28/92 


Albert .1. Johnson 

V. 

N.C. Victims Compensation Commission 


91 CPS 0038 


Morgan 


07/28/92 


Frank Beal, T/A Wild Wild West 

V. 

Alcoholic Beverage Control Commission 


91 ABC 0164 


Morgan 


09/10/92 


William B. Holden 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 0176 


Morgan 


08/18/92 


Brenda P. Price 

V. 

North Carolina Central University 


91 OSP 0219 


Morrison 


08/21/92 



1690 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Century Care of Laurinburg, Inc. 

V. 

DHR. Di\ision of Facility Services. Licensure Section 


91 DHR 0257 


West 


06/30/92 


Kenneth E. Fletcher 

V. 

University of North Carolina at Greensboro 


91 OSP0315 


Chess 


09/15/92 


Richard L. Gainey 

V. 

Department of Justice 


91 OSP0341 


Becton 


08/10/92 


Wade Charles Brown. Jr. 
N.C. Crime Victims Compensation Commission 


91 CPS 034.5 


Chess 


07/08/92 


Jackie Bruce Edwards 

V. 

DHR. Western Carolina Center 


91 OSP 0354 


West 


08/20/92 


Central Transport. Inc. 

V, 

Department of Environment. Health. & Natural Resources 


91 EHR 0402 


Morrison 


09/25/92 


Robert C. Hov^ell 

V. 

Department of Correction 


91 OSP 0407 


Morgan 


08/26/92 


Harvey Fertilizer and Gas Company 

V. 

EHR. Disision of Environmental Management 


91 EHR 0446 


Morgan 


10/01/92 


Charles E. Roe 

V. 

Department of Environment. Health. & Natural Resources 


91 OSP 0520 


Nesnow 


07/23/92 


Jerr>' J. Parker 

V. 

Department of Correction 


91 OSP 0546 


Morgan 


08/26/92 


Deborah Binkley 

V. 

Crime Victims Compensation Commission 


91 CPS 0561 


Morgan 


10/02/92 


Air-A-Plane Corporation 
Department of Environment. Health, & Natural Resources 


91 EHR 0636 


Nesnow 


09/04/92 


Lisa M. Reichstein 

V. 

Office of Student Financial Aid, East Carolina University 


91 OSP 0662 


Nesnow 


06/24/92 


Hudson's "The Acres" Rest Home 

V. 

DHR. Division of Facility Services, Licensure Section 


91 DHR 0665 


Chess 


09/09/92 



7.- 7 6 



NORTH CAROLINA REGISTER 



November 16, 1992 



1691 



CONTESTED CASE DECISIONS 



CASE N.AME 


CASE 
NLTVIBER 


ALJ 


FILED 
DATE 


Bobby R. Graham 

V. 

DHR, Caswell Center 


91 OSP 0695 


Nesnow 


09/21/92 


DHR, Di\ ision of Facility S\cs. Child Da)' Care Section 

V. 

Mary Goodwin. Jean Dodd. D, B, A Capital City Day Care 

Center 


91 DHR 0720 


Morgan 


07/30/92 


Kenneth Helms 

\'. 

Department of Human Resources 


91 OSP 0729 


Chess 


07/15/92 


Lloyd C. Neely 

\'. 

Department of Correction 


91 OSP 0756 


Morgan 


09/10/92 


Alcoholic Beverage Control Commission 

\ . 

Daniels Investments. Inc.. t'a Leather & Lace - East 

4205 Monroe Road. Charlotte. N.C. 28205 


91 ABC 0799 


Mann 


07/14/92 


Zelma Babson 

V. 

Brunswick County Health Department 


91 OSP 0804 


Gray 


08/14/92 


ACT-UP Triangle (AIDS Coalition to Unleash Power 

Triangle. Steven Harris, and John Doe 

\'. 

Commission for Health Ser\'ices of the State of N.C Ron 

Levine. as Assistant Secretar}' of Health and State Health 

Director for EHR of the State of N.C. William Cobey. as 

Secretan,' of EHR of the State of N.C, Dr. Rebecca 

Meriwether, as Chief. Communicable Disease Control 

Section of the N.C. EHR, Wayne Bobbitt, Jr.. as Chief of 

the HIV'.STD Control Branch of the N.C. EHR 


91 EHR 0818 


Becton 


07/08/92 


Jane C. OWIalley. .Melvin L. Cartwright 
\. 
EHR and District Health Department Pasquotank- 
Perquimans-Camden-Chowan 


91 EHR 0838 


Becton 


07/02/92 


Chen,l Veronica .McNeal 

\ . 

Criminal Justice Education & Training Stds Comm 


91 DOJ 0861 


.Morgan 


09/22/92 


Thomas E. Vass 

\'. 

James E. Long. Department of Insurance 


91 INS 0876 


Morrison 


08/14/92 


William Paul Fearrington 

V. 

University of North Carolina at Chapel Hill 


91 OSP 0905 


ReiUy 


08/28/92 



1692 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Olde Towne Partnership and Tryon Realty Co. 

V. 

EHR, Division of Coastal Management 


91 EHR 0909 


Morrison 


09/16/92 


Gerald R. Pruitt 

V. 

Department of Correction 


91 OSP 0933 


Gray 


09/14/92 


Jones Grading & Fencing, Inc. 

V. 

EHR. Solid Waste Management 


91 EHR 0956 
91 EHR 0324 


Nesnow 


09/28/92 


Grotgen Nursing Home, Inc., Britthaven, Inc. 

V. 

Certificate of Need Section, Div of Facility Svcs, DHR 


91 DHR 0964 
91 DHR 0966 


Nesnow 


07/06/92 


Ralph E. Brown 

V. 

Carla O'Konek, Department of Correction 


91 OSP 0970 


Morgan 


10/07/92 


Anthony J. Carter 

V. 

DHR. Division of Social Services, CSE 


91 CSE 0975 


Nesnow 


09/17/92 


Ramona S. Smith, R.N. 

V. 

N.C. TeachersVSt Emps" Comp Major Medical Plan 


91 DST 0984 


Chess 


06/18/92 


Jarrett Dennis Swearengin 

V. 

DHR, Division of Social Services, CSE 


91 CSE 0986 


Becton 


09/14/92 


Charles H. Yates. Power of Attorney for Ruth Yates 

V. 

N.C. TeachersVSt Emps" Comp Major Medical Plan 


91 INS 1008 


Reilly 


08/21/92 


John McMillan 

V. 

DHR. Division of Social Services, CSE 


91 CSE 1009 


Reilly 


10/01/92 


Walter McGlone 

v. 

DHR, Division of Social Services. CSE 


91 CSE 1030 


Morrison 


07/13/92 


William Oscar Smith 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1042 


Gray 


07/24/92 


William Watson 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1047 


Becton 


07/08/92 


Robert D. Daniels Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1048 


Morrison 


08/27/92 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1693 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Joseph L. Wilmer 

V. 

DHR. Division of Social Services, CSE 


91 CSE 1049 


Becton 


10/20/92 


Marie McNeill-Pridgen 

V. 

Department of Environment. Health, & Natural Resources 


91 EHR 1059 


Nesnow 


07/17/92 


Catawba Memorial Hospital 

V. 

DHR, Div of Facility Svcs, Certificate of Need Section 

and 
Fr}'e Regional Medical Ctr, Inc. and Amireit (Frye), Inc. 

and 

Thorns Rehabilitation Hospital Health Services Corp. 

and 

Frye Regional Medical Ctr, Inc. and Amireit (Frye). Inc. 

V. 

DHR, Di\' of Facility Svcs, Certificate of Need Section 

and 

Thoms Rehabilitation Hospital Health Services Corp. 

and 

Catawba Memorial Hospital 


91 DHR 1061 
91 DHR 1087 


Reilly 


07/13/92 


Edward R. Peele 

V. 

Sheriffs" Education & Training Stds. Commission 


91 DOJ 1092 


Morrison 


08/18/92 


Willie Turner 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1096 


Morrison 


10/23/92 


Charles Lawion Roberts 
DHR. Di\ision of Social Services. CSE 


91 CSE 1097 


Becton 


09/14/92 


William Torres 

V. 

Dept of Justice, Lacy H. Thornburg, Attorney General 


91 DOJ 1098 


Morrison 


08/07/92 


Wade A. Burgess 

V. 

DHR. Division of Social Services. CSE 


91 CSE 1114 


Gray 


07/01/92 


Devoux A. OUiver 

V. 

Department of Human Resources. O'Berry Center 


91 OSP 1151 


Gray 


09/30/92 


Sammie L. Anderson 

\-. 

DHR. Division of Social Services. CSE 


91 CSE 1155 


Mann 


09/01/92 


Harry L. King 

V. 

Department of Transportation 


91 OSP 1162 


Morgan 


07/13/92 



1694 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Bobby M. Siler 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1169 


Morrison 


10/12/92 


Gilbert Lockhail 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1178 


Morrison 


07/30/92 


Isaac H. Galloway 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1190 


Reilly 


06/30/92 


Russell A. Barclift 

V. 

DHR. Division of Social Services, CSE 


91 CSE 1207 

92 CSE 0275 


Reilly 


06/30/92 


Barnabas D. Frederick 

V. 

DHR, Division of Social Services. CSE 


91 CSE 1216 


Nesnow 


09/15/92 


Herman Edward Main 11 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1225 


Nesnow 


07/07/92 


Albert Louis Stoner III 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1244 


Gray 


07/01/92 


James E. Greene 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1245 


Nesnow 


07/14/92 


Joseph W. Harris 

V. 

DHR. Division of Social Services. CSE 


91 CSE 1247 


Morgan 


07/28/92 


Celvis M. Burns 

V. 

DHR. Division of Social Services, CSE 


91 CSE 1256 


Mann 


09/01/92 


Rodney Powell 
DHR, Division of Social Services, CSE 


91 CSE 1257 


Morgan 


07/29/92 


Miles G. Griffin Jr. 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1270 


Gray 


08/27/92 


Gerald E. Anthony 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1274 


Mann 


09/01/92 


Floyd L. Rountree 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1275 


Morgan 


07/22/92 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1695 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Ruth Smith Hensley Shondales 

V. 

ABC Commission 


91 ABC 1280 


Chess 


08/05/92 


William James Terry 

V. 

Victims Compensation Commission 


91 CPS 1302 


Morrison 


10/02/92 


Rasoul Behboudi 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1313 


Morrison 


09/15/92 


John D. Gaines 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1321 


Chess 


10/05/92 


City-Wide Asphalt Paving, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 1360 


Chess 


07/01/92 


Alcoholic Beverage Control Commission 

v. 

Tre Three, Inc., T/A Crackers, 

Airport Rd., Rockingham, NC 28379 


91 ABC 1372 


Chess 


07/07/92 


Alcoholic Beverage Control Commission 

V. 

Rode Enterprises, Inc., T/A Jordan Dam Mini Mart 


91 ABC 1388 


Gray 


07/30/92 


Carol J. Brown-L 238-96-9304 for 
Joel A. Brown-M 350-70-9378 

V. 

DHR. Division of Social Services, CSE 


91 DHR 1397 


Morrison 


10/29/92 


Blythe M. Bragg 

V. 

University of North Carolina at Chapel Hill 


91 OSP 1421 


Nesnow 


09/08/92 


David W. Williams 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1423 


Morrison 


09/10/92 


Donald R. Allison 

V. 

DHR, Caswell Center 


91 OSP 1427 


Reilly 


06/30/92 


Alfred Rees 

V. 

Department of Environment, Health, & Natural Resources 


92 EHR 0004 


Reilly 


09/03/92 


Mrs. S. 

V. 

Washington County Board of Education 


92 EDC 0023 


Mann 


08/28/92 



1696 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Rudolph Tripp 

V. 

Department of Correction 


92 OSP 0024 


Gray 


08/27/92 


Gonzalo Rodriquez T/A Gonzalo's Baile Mexicano 
227 S. Scales Street, Reidsville, NC 27323 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0026 


Chess 


10/01/92 


Lavern Fesperman 

V. 

Mecklenburg County 


92 OSP 0030 


Chess 


07/17/92 


Vale B. Sims 

V. 

Winston-Salem State University 


92 OSP 003 1 


Gray 


10/13/92 


Paul J. Nonkes 

V. 

Halifax County Health Dept. (Jeff Dillard. Sanitarian) 


92 EHR 0058 


Becton 


08/28/92 


Carrolton of Williamston. Inc. 

V. 

DHR. Division of Facility Services. Licensure Section 


92 DHR 0071 


Becton 


08/19/92 


Mattie S. Bryant 

V. 

Department of Transportation 


92 OSP 0081 


ReiUy 


10/07/92 


Fred Jennings Moody Jr. 

V. 

Sheriffs' Education & Training Stds. Commission 


92 DOJ 0084 


Chess 


07/17/92 


Ronnie Lamont Donaldson 

V. 

Sheriffs" Education & Training Standards Commission 


92 DOJ 0092 


ReiUy 


07/27/92 


Vernice V. Battle 

V. 

Sheriffs" Education & Training Standards Commission 


92 DOJ 0093 


Becton 


08/28/92 


Hudson's "The Acres" Rest Home 

V. 

DHR. Division of Facility Services. Licensure Section 


92 DHR 0100 


Chess 


09/04/92 


Marvin Helton, Jean Helton 

V. 

DHR. Division of Facility Services 


92 DHR 0102 


Chess 


08/14/92 


Leo Scott Wilson 

\'. 

Department of Environment. Health. & Natural Resources 


92 EHR 01 12 


Reilly 


08/26/92 


Ray Charles Ramsey D/B/'A Triples Night Club 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0116 
92 ABC 0360 


West 


10/12/92 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1697 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Peggy N. Barber 

V. 

The liniversity of North Carolina at Chapei Hill 


92 OSP0120 


ReiUy 


07/13/92 


Luther Dawson Jr. 

V. 

DHR. Division of Facility Services 


92 DHR 0121 


Nesnow 


10/09/92 


Rodney A. Cranfill 
w 
Dept of Labor. Division of Occupational Safety & Health 


92 DOL 0122 


Nesnow 


10/22/92 


Robert C. Thomas 
Sheriffs" Education & Training Stds. Commission 


92 DOJ 0130 


Chess 


10/02/92 


Alcoholic Beverage Control Commission 

V. 

John Wade Lewis, t/a Tasty Grill 


92 ABC 0145 


Nesnow 


07/15/92 


Licensing Board for General Contractors 
Wright's Construction. Inc. (Lie. No. 23065) 


92 LBC 0172 


Gray 


07/31/92 


Richard L. Banks 

V. 

Pasquotank-Perquimans-Camden-Chovvan District Health 

Department (PPCC) & Department of Environment. 

Health, & Natural Resources 


92 EHR0175 


West 


08/25/92 


America's Management Group. Inc. d/b/a America's 

Health Care of Nashville 

\'. 

DHR. Division of Facility Services. Licensure Section 


92 DHR 0183 


West 


10/06/92 


Hudson's "The Acres" Rest Home 

v. 

DHR. Division of Facility Services, Licensure Section 


92 DHR 0186 


Chess 


09/04/92 


Ray Bryant 

v. 
Department of Labor, OSHA 


92 DOL 0187 


Nesnow 


08/07/92 


Herbert Hines Jr., H & H 

V. 

.Alcoholic Beverage Control Commission 


92 ABC 0189 


Becton 


07/22/92 


William Stevenson 

v. 

Department of Correction 


92 OSP 0201 


Chess 


09/03/92 


Frances B. Billingsley 

V. 

Bd. of Trustees/Teachers & St Employees Retirement Sys 


92 DST 0205 


Morgan 


08/18/92 



169S 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Glenn E. Myers 

V. 

Department of Correction 


92 OSP 0217 


Reilly 


09/14/92 


Lawrence Neal Murrill T/A Knox, 507 1st St SW, 
Hickory. NC 28602 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0220 


Chess 


08/03/92 


William Oats 

V. 

Elizabeth City State University 


92 OSP 0226 


Nesnow 


10/09/92 


Town of Denton 

V. 

Department of Environment, Health, & Natural Resources 


92 EHR 0241 


Reilly 


07/30/92 


Alcoholic Beverage Control Commission 

V. 

Byrum's of Park Road, Inc., T/A Byrum's Restaurant 


92 ABC 0252 


Gray 


07/30/92 


Alcoholic Beverage Control Commission 

V. 

Leo's Delicatessen #2, Inc., T/A Leo's #2 


92 ABC 0255 


Gray 


07/30/92 


North Topsail Water & Sewer, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


92 EHR 0266 


Morrison 


08/12/92 


Raymond O. and Rita Halle, and the Town of Boone 

V. 

EHR, Division of Land Resources 


92 EHR 0267 
92 EHR 0.^76 


Gray 


09/18/92 


James L. Stubbs 

v. 

Department of Correction 


92 OSP 0282 


Chess 


10/02/92 


Henry Thomas Tart 

v. 

DHR, Division of Social Services, CSE 


92 CSE 0283 


Nesnow 


09/15/92 


Virginia Devenny 

V. 

The University of North Carolina at Charlotte 


92 OSP O.SOl 


Reilly 


09/22/92 


Friends of Hatteras Island National Historic Maritime 

Forest Land Trust for Preservation, Inc. 

v. 

Coastal Resources Commission of the State of NC 

and 

Cape Hatteras Water Association, Inc. 


92 EHR 0303 


West 


10/19/92 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1699 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Henn, Lane, D/B/A Emerald Health Care Acute Care Ctr 

v. 
DHR, Div of Facility Services, Certificate of Need Section 

and 

Bowman-Richardson Health Care, Inc. D/B/A Wilkes 

Senior Village 


92 DHR 0308 


Gray 


08/28/92 


Azmi Sider. Midtown Mini Mart 

\'. 

EHR. Division of Maternal and Child Health. WIC Section 


92 EHR 0317 


Nesnow 


09/16/92 


Gerald G. Strickland 
Crime Control and Public Safety 


92 CPS 0320 


Chess 


09/10/92 


Charles Wesley McAdams 

V. 

Division of Motor Vehicles 


92 OSP 0332 


Gray 


10/13/92 


Jonathan L. Fann 

\'. 

U.N.C. Physical Plant, Herb Paul, Louis Herndon. Dean 

Justice, Bruce Jones 


92 OSP 0363 


Becton 


08/19/92 


Douglas A. Bordeaux 

V. 

Department of Correction 


92 OSP 0378 


Chess 


07/10/92 


Clifton R. Johnson 
O'Berry Center, Department of Human Resources 


92 OSP 0381 


West 


07/08/92 


Southeastern Machine & Tool Company, Inc. 

V. 

Department of Ensironment. Health. & Natural Resources 


92 EHR 0386 


Becton 


07/20/92 


Lou\enia Clark 
Edgecombe County Department of Social Services 


92 OSP 0402 


Reilly 


08/21/92 


Raleigh F. LaRoche 

V. 

Child & Family Services of Wake County 


92 OSP 0409 


Becton 


08/24/92 


Matthew R. Anderson 

V. 

DHR. Division of Social Services. CSE 


92 CSE 0418 


Gra\' 


10/06/92 


Ellwin C. Wetherington Jr. 
DHR. Division of Social Services. CSE 


92 CSE 0419 


Morrison 


09/28/92 


Paul Ree\es. Youth L'ni\'ersity Child Care 

V. 

Child Day Care Section. Di\ision of Facility S\cs 


92 DHR 0424 


West 


08/21/92 



1700 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Mr. & Mrs. James C. Stanton 

V. 

Charlotte-Mecklenburg School System 


92 EDC 0430 


Nesnow 


08/04/92 


James Cooper Lewis 

V. 

Sheriffs' Education & Training Standards Commission 


92 DOJ 0461 


Reilly 


09/15/92 


Alcoholic Beverage Control Commission 

V. 

Roy William League, T/A Jamie's 


92 ABC 0474 


Reilly 


10/15/92 


Alcoholic Beverage Control Commission 

V. 

508 Investors, Inc., t/a Johnathon's Restaurant 


92 ABC 0476 


Nesnow 


09/24/92 


Jon David Amundson 

V. 

Davidson County Mental Health 


92 OSP 0503 


Becton 


09/10/92 


Northview Mobile Home Park 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0507 


Reilly 


07/ 1 3/92 


Yolanda Lynn Bethea 

v. 

DHR, Division of Social Services, CSE 


92 DCS 05 1 3 


Becton 


08/14/92 


Frank Humphrey 

V. 

EHR, Division of Environmental Management 


92 EHR 0514 


Morrison 


10/08/92 


Alice Hunt Davis 

v. 

Department of Human Resources 


92 OSP 0526 


West 


07/ 1 6/92 


Jimmy F. Bailey Sr. 

V. 

Department of State Treasurer, Retirement Systems Div 


92 DST 0536 


Morgan 


08/18/92 


Alcoholic Beverage Control Commission 

V. 

Partnership (Rollo Corrothers) t/a Corrothers Community 
Center and Private Club 


92 ABC 0539 


Mann 


10/19/92 


James R. Coley Sr. 

V. 

Department of Crime Control & Public Safety 


92 CPS0551 


Morgan 


10/28/92 


Bramar, Inc., t/a Spike's 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0554 


Mann 


08/13/92 


Grady Lockhart Jr. 

V. 

DHR, Division of Social Services, CSE 


92 CSE 0565 


Becton 


09/28/92 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1701 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Ralph J. Ogburn 

V. 

Private Protective Services Board 


92 DOJ 0571 


Nesnow 


08/07/92 


George M. Hagans 

V. 

DHR. (Cherry Hospital) 


92 OSP 0583 


Morgan 


09/21/92 


Gilbert Todd Sr. 

V. 

Public Water Supply Section 


92 EHR 0586 


Morrison 


08/06/92 


Candance Y. Johnson 

V. 

Di\ision of Motor Vehicles 


92 DOT 0589 


Becton 


08/24/92 


John W. Surles 

V. 

N.C. Crime Victims Compensation Commission 


92 CPS 0595 


Reilly 


07/13/92 


Michelle L'mstead 

V. 

Crime Victims Compensation Commission 


92 CPS 0599 


Morrison 


10/26/92 


Alcoholic Beverage Control Commission 

V. 

Richard Henry Bradley T/A Nite Lite 


92 ABC 0613 


Gray 


10/30/92 


Pamela Jean Gass 

V. 

DHR, Division of Social Services, CSE 


92 DCS 0623 


Morrison 


08/14/92 


J.W. Reed 

v. 

Department of Correction 


92 OSP 0638 


Morrison 


08/11/92 


Debra G. Conner 
Caswell Center, Department of Human Resources 


92 OSP 0647 


Morgan 


10/28/92 


Carson Davis 

V. 

Department of Correction 


92 OSP 0650 


Reilly 


08/10/92 


Kevin Stringer 

V. 

DHR, Division of Social Services, CSE 


92 CSE 0651 


Gray 


10/23/92 


Luther Hall Clontz 

V. 

Western Carolina Center (NC of Human Resources) 


92 OSP 0652 


Becton 


09/10/92 


Private Protective Services Board 

V. 

Mark Andrew Perry 


92 DOJ 0662 


Becton 


09/10/92 



1702 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Stauffer Information Systems 

V. 

Department of Community Colleges and the N.C. 

Department of Administration 

and 

The University of Southern California 


92 DOA 0666 


West 


07/08/92 


Dortheia B. Marley 

V. 

Department of Correction 


92 OSP 0667 


West 


09/28/92 


Nancy J. Tice 

V. 

Administrative Off of the Courts, Guardian Ad Litem Svcs 


92 OSP 0674 


Morrison 


08/11/92 


L. Stan Bailey 

V. 

Chancellor Moran and UNC-Greensboro 


92 OSP 0679 


West 


07/10/92 


Arnold McCloud T/A Club Castle 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0681 


Morrison 


07/25/92 


Alcoholic Beverage Control Commission 

V. 

Alfonzo Damon T/A The New Zanza Bar 


92 ABC 0690 


Gray 


10/30/92 


Joyce Faircloth, T/A Showcase Lounge 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0713 


Morrison 


07/25/92 


James B. Price 

v. 

Department of Transportation 


92 OSP 0725 


Mann 


09/02/92 


Edmonia Lang 

V. 

Carteret County Board of Education 


92 OSP 0736 


Mann 


08/28/92 


Larry Bruce High 

V. 

Alarms Systems Licensing Board 


92 DOJ 0755 
92 DOJ 0785 


Nesnow 


08/25/92 


Wyoming Gilliam 

V. 

DHR, Division of Social Services, CSE 


92 CSE 0772 


Gray 


09/29/92 


Timothy Wylie 

V. 

Department of State Treasurer, Retirement Systems Div 


92 DST 0793 


Morrison 


09/29/92 


Rosie W. Harrell 

V. 

Administrative Office of the Courts 


92 OSP 0846 


West 


09/17/92 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1703 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLTVIBER 


ALJ 


FILED 
DATE 


Resteyne M. Wilkinson 

V. 

Employment Security Commission 


92 OSP 0870 


Chess 


10/27/92 


Robert Aiken 
Department of Correction 


92 OSP 0872 


Gray 


09/25/92 


Daniel N. Jones 

V. 

N'.C. Victims Compensation Commission 


92 GPS 0879 


Chess 


08/28/92 


Paul Hunter 

V. 

Dorothea Dix Hospital 


92 OSP 0878 


Chess 


09/29/92 


Da\id V. Gates 

V. 

Alarm Systems Licensing Board 


92 DOJ 0892 


Becton 


10/05/92 


Kiddie Kountr>' Day Care, Elaine Stephenson 

V. 

Public Water Supply System 


92 EHR 0901 


Becton 


10/28/92 


Larry E. Foreman. L. Reginald Caroon. Benny C. Lear>'. 
Zool Ireland. Mitchie Midgette. and .Arthur Learj' 

V. 

DHR. Division of Marine Fisheries 


92 EHR 0908 
92 EHR 0909 
92 EHR 0910 
92 EHR 0911 
92 EHR 0912 
92 EHR 0924 


Gray 


10/28/92 


Earn, Donnel Williams 

V. 

DHR, O'Berry Center 


92 OSP 0950 


Gray 


10/19/92 


Tomenah W. Hudson 

V, 

Department of Environment. Health. & Natural Resources 


92 EHR 0983 


Reilly 


10/21/92 


Heritage Environmental Services, inc. 

\ . 

Department of Environment. Health, & Natural Resources 


92 EHR 1039 


Gray 


10/27/92 


Jimmie Lee Thorne Jr. 

V. 

Victims Compensation Commission 


92 GPS 1059 


Nesnow 


10/20/92 



1704 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF DARE 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
92 EHR 0303 



FRIENDS OF HATTERAS ISLAND 
NATIONAL HISTORIC MARITIME 
FOREST LAND TRUST FOR 
PRESERVATION. INC., 

Petitioner. 



vs. 



COASTAL RESOURCES COMMISSION 
OF THE STATE OF NORTH CAROLINA, 



Respondent, 



and 



CAPE HATTERAS WATER ASSOCIATION. 
INC., 

Intervenor-Respondent. 



RECOMMENDED DECISION 

OF THE 

ADMINISTRATIVE LAW JUDGE 



This contested case was heard beginning on August 10, 1992 and continuing until September 1, 1992 
upon Petitioner Friends of Hatteras Island's Petition filed on March 20, 1992. Sixteen days of testimony 
were held in Raleigh before Administrative Law Judge Thomas R. West. The parties waived the filing of 
proposed findings of fact, conclusions of law and written arguments and instead made lengthy closing 
arguments. 

APPEARANCES 

Petitioner, Friends of Hatteras Island ("FOHI") was represented by Lark Hayes, Esq. and Derb 
Carter, Esq. of the Southern Environmental Law Center, Chapel Hill, North Carolina. 

Respondent, Coastal Resources Commission ("CRC") was represented by David G. Heeter, Esq., 
Associate Attorney General, appearing on behalf of Attorney General Lacy H. Thornburg. 

Intervenor-Respondent, Cape Hatteras Water Association ("the Association" or "CHWA") was 
represented by Amos C. Dawson, III, Esq. of Maupin, Taylor, Ellis & Adams, P. A., Raleigh, North Carolina 
and Robert L. Outten. Esq., of Sharp, Outten & Graham, Kitty Hawk, North Carolina. 

ISSUES 

1. Is Coastal Area Management Act {"CAMA") Permit No. 152-91, allowing construction by 

the CHWA of nine wells for the production of water, together with the pertinent access and underground 
utilities, in a portion of the Cape Hatteras Well Field Area of Environmental Concern ("AEC") within the 
Buxton Woods Coastal Reserve, consistent with N.C.G.S. 1 13A-120, including the applicable State guidelines 
as applied through N.C.G.S. 1 13A-120(a)(8)? 

These guidelines include Rule 15A NCAC 7H .0601, which provides that no development will be 
allowed in an AEC which would result in a contravention or violation of any regulations or laws of the State 
of North Carolina or of the local government in which the development takes place. The relevant State 



7:76 



NORTH CAROLINA REGISTER 



November 16, 1992 



1705 



CONTESTED CASE DECISIONS 



regulations and laws include those governing the Coastal Reserves set forth in 15A NCAC 70. 0100 et seq . 
and N.C.G.S. 113A-129.1 et seg. as they apply to Buxton Woods. 

2. Considering the engineering requirements and all economic costs, is there a practicable 
alternati\'e that would accomplish the overall project purposes with less adverse impact on the public 
resources? N.C.G.S. 1I3A-I20(a)f9). 

3. Would the de\elopment allowed by Permit No. 152-91 contribute to cumulative effects which 
would be inconsistent with applicable CAMA guidelines? N.C.G.S. 113-120(aj( lOj. 

BLTtPEN OF PROOF 

Petitioner FOHI has the burden of proof in this matter. N.C.G.S. 1 13A- 122(b)(7). Under CAMA, 
unless one of the findings justifs'ing denial set forth in N.C.G.S. 1 13A-120(a)(l)-(10)can be made, the Permit 
shall be granted. N.C.G.S. 1 13A-120(b). Therefore, if Petitioner fails to meet its burden of proof on at least 
one of the issues raised in its Petition, CAM.4 requires affirmance and issuance of the Permit at issue in this 
case. 

OFFICL\L NOTICE 

Official notice is taken of Chapter 1 13A of the North Carolina General Statutes and Title 15A of the 
North Carolina Administrative Code. 

^^T^^TSSES 

The following persons were called by the Petitioner and testified: 

1. Dr. James D. Gregory. 

2. John Taggart. 

3. Alan S. Weakley. 

4. John R. Dorney. 

5. Dr. Vincent J. Bellis. 

6. Dr. Thomas R. Wentv.orth. 

7. William Diehl. 

8. Ricki Shepherd. 

9. The testimony of Lawrence J. .Martin was received through his videotaped deposition, and 
the portions of that deposition allowed into evidence appear in the transcript of said deposition which is part 
of the Record in this proceeding. 

The following persons were called by Respondent and testified; 

1. Rich Shaw. 

2. Pete Colwell. 

3. Da\ id Owens. 



1706 7:16 NORTH CAROLINA REGISTER November 16, 1992 



CONTESTED CASE DECISIONS 



4. Ted Mew. 

5. Roger Schecter. 

The following persons were called by Intervenor-Respondent and testified: 

1. Dr. J. H. Carter, III. 

2. Dr. F. Danforth Burroughs. 

3. Thomas Gray. 

4. Jim Coleman. 

5. Dr. Leon S. Jernigan. 

6. Ralph C. Heath. 

EXHIBITS 

Two volumes of documents consisting of approximately 198 separately identified documents were 
stipulated by the parties to constitute the Agency File on the subject Permit. The parties further stipulated 
as to the authenticity of said Record Documents, and the Record Documents were admitted into evidence by 
stipulation of the parties. 

In addition, each party tendered numerous exhibits, many of which were admitted into evidence. 
These exhibits included a number of additional documents, maps, aerial photographs, charts and other similar 
types of exhibits. The document exhibits submitted into evidence by the parties are contained in the Record 
of this case in separate notebooks prepared by each party. 

Based upon a preponderance of the evidence admitted, the undersigned Administrative Law 
Judge makes the following: 

FINDINGS OF FACT 

1 . The Cape Hatteras Water Association has been supplying water from a well field located near 
Frisco on Hatteras Island since approximately 1969. Since at least 1973, the Association's existing "well 
field" and the "future well field" have been shown on the tax maps of Dare County. 

2. The Association is the only public water supply for the towns of Avon, Buxton, Frisco and 
Hatteras. The Association is a private, nonprofit corporation which is regulated as a "public water system" 
and as a "community water system." There is no other public water supply system in the area served by the 
Association. 

3. In 1977, recognizing that the aquifer beneath the well field and the future well field serves 
as the sole source of drinking water for the communities of Avon. Buxton, Frisco and Hatteras as well as the 
National Seashore Recreation Area, the Coastal Resources Commission designated the Cape Hatteras well 
field as a Public Water Supply Well Field AEC. That AEC designation included a tract identified as "well 
field" that extended approximately 12,000 feet west from Water Association Road and a tract identified as 
"future well field" which extended approximately 8.000 feet to the east of Water Association Road. The 
boundary of the AEC was 500 feet from all sides of the center line. 

4. On January 23, 1987, the CRC clarified by declaratory ruling the boundaries of the AEC. 
The CRC declared that the purpose of the AEC designation was the long-term protection of the water supply 
well field for Cape Hatteras and that the intent of the CRC in designating this AEC was the protection of the 

7:16 NORTH CAROLINA REGISTER November 16, 1992 1707 



CONTESTED CASE DECISIONS 



entire potential well field, including wells existing in 1977 and future well sites. Therefore, the CRC found 
that the original AEC designation in 1977 included both the existing well field and the future area to the east 
thereof then designated as a potential expansion area. 

5. In approximately 1987, the Association initiated consideration by the CRC of the expansion 
of the Cape Hatteras Public Water Supply Well Field AEC to a boundary extending 1,000 feet from all sides 
of the center line of the existing AEC, and the addition of a tract owned by the Association known as the 
"Church Propei'ty" along the National Park Service boundary. 

6. During the declaratory ruling process in 1986 and early 1987, FOHI submitted comments 
supporting protection of both the existing and future well field areas. In 1987, FOHI supported expansion 
of the AEC boundary from 500 feet to 1 ,000 feet in order to protect the area around the existing wells and 
where the future wells would be pumping some day. FOHI engaged Ralph Heath, a respected hydrogeologist 
and former Chief of the U.S. Geological Survey in North Carolina, to speak on their behalf in support of the 
AEC expansion. During the AEC expansion process. FOHI, as well as Mr. Heath, understood that water 
withdrawal wells would be going into the future well field some day, and FOHI supported expansion of the 
AEC to protect both the existing and future well sites. 

7. In the summer of 1987, the CRC expanded the boundaries of the AEC to 1,000 feet as 
requested by the Association. The pui-pose of the AEC expansion was to protect the quality of the water in 
the aquifer, primarily by limiting installation of ground-absorption systems, also known as septic-tank systems. 

8. The North Carolina Estuarine Sanctuary Program originally included four island components. 
These included Zeke"s Island, Rachel Carson, Currituck Banks and Masonboro Island. These islands were 
acquired with federal assistance under the National Estuarine Research Reserve Program. The Estuarine 
Sanctuary Rules, Chapter 15 NCAC 70, were originally effective July 1 . 1986. In 1987, when the State began 
its program of acquisition of lands in Buxton Woods, the Estuarine Sanctuary Rules were amended to create 
a State Coastal Reserve program that would encompass the existing Estuarine Sanctuary components and also 
include Permuda Island and Buxton Woods. The Coastal Reserve Statute, N.C.G.S. 113A-129.1, et. seq., 
was not enacted until several years later, in 1989. 

9. In a press release by Governor Martin dated October 23, 1987, it was announced that the 
State would begin purchasing key portions of the Buxton Woods for use as a natural area. The press release 
also noted that protection of the community water supply was one of the goals of the acquisition program and 
that: "Agreements may also be reached that would allow portions of the acquired area to be used for 
community water supply." Record Document ("RD") #26. 

10. The Environmental Assessment of the Public Purchase of Buxton Woods, RD #25, states 
under the Project Purposes that: "Future use of small portions of the area as well sites for a community water 
supply system is also possible." The Natural Heritage Program of the Division of Parks and Recreation was 
aware that portions of Buxton Woods contemplated for acquisition might be used for future well sites. In a 
report on the Buxton Woods Natural Area prepared by the North Carolina Natural Heritage Program in 
November 1987, RD #27, in the Section entitled "Other Values and Significance," it was noted that: "Buxton 
Woods is the recharge area for the shallow ground water aquifer that is the source of drinking water for the 
towns of the island. The economy of the area is dependent on this economic and high quality water source. 
The Hatteras Island Water Association well field is located within the secondary boundary of the natural area. 
An area planned for future expansion of the well field is also included in the area. Protection of the Buxton 
Woods natural area will help ensure the quality of future water supplies." 

11. In 1988, the State, using State and Federal funds, began purchasing land to be placed into 
the Buxton Woods Coastal Reserve. The first tract, the Foreman-Blades tract, approximately 152 acres, was 
purchased in January 1988. Acquisition of the Foreman-Blades tract was made with the express understanding 
by the State that future water supply wells might be located on that property and that fact was incorporated 
into the Council of State's approval of the purchase. The Phipps tract, approximately 178 acres, was 
purchased in September of 1988. Additional tracts ha\e been acquired since 1988, and further acquisition 



1708 7:16 NORTH CAROLINA REGISTER November 16, 1992 



CONTESTED CASE DECISIONS 



efforts are currently underway. 

12. State officials involved in the acquisition of lands in Buxton Woods contemplated that portions 
of the State-owned lands could possibly be used as well sites for the public water supply system, if those wells 
were installed in an environmentally compatible manner. In approving the purchase of lands in Buxton 
Woods, the Governor and Council of State were aware of the possibility that water supply wells might be 
located on some of the lands acquired. During the acquisition of the Foreman-Blades tract, the Association 
offered to help the State with the purchase of that tract. The Association was told that this would not be 
necessary. 

13. In the Grant Application which the Division of Coastal Management ("DCM") prepared for 
the purchase of the Phipps tract, RD #31, DCM stated in Section VI that the most important threat to Buxton 
Woods and the local water supply was "development." DCM stated that "conversion of the natural forested 
uplands to consumptive uses could overuse the ground water reserve and pollute portions of the freshwater 
lens with septic-tank drainage." DCM also noted that surface development was still possible within the AEC, 
despite the AEC designation. DCM also noted in Section V that the yield and water quality of the shallow 
aquifer underlying Buxton Woods is of critical importance to local residents and that hydrogeologist Ralph 
Heath concluded that this aquifer is the only significant source of fresh water between Oregon Inlet and Bogue 
Banks. 

14. On approximately November 30, 1990, the Association applied for a CAMA permit to place 
nine wells, together with associated underground utilities and narrow access roads on State-owned lands in 
the Buxton Woods Coastal Reserve. 

15. The Association's Permit Application received extensive review by DCM and other State and 
Federal agencies. The application was submitted to numerous State and Federal agencies for comment, and 
extensive staff discussions were held concerning the various issues raised during permit review. Both the 
Public Water Supply Renewable Resource AEC Rules and the Coastal Reserve Statute and Rules were 
reviewed. DCM Director, Roger Schecter, determined that additional information was needed to assess 
potential impacts of the proposed project on the AEC and the Coastal Reserve. Therefore, in approximately 
April of 1991, DCM requested, and the Association voluntarily agreed, that the application be put "on hold" 
pending review of comments and collection of additional data regarding the potential impact of the proposed 
project on ground water, wetlands and the forest resources of Buxton Woods. 

16. After site visits by DCM staff, a new alignment for certain wells and access trails was 
selected in order to reduce potential impacts. The new alignment placed more wells along existing roads and 
trails, reduced the amount of disturbance to vegetation and reduced or eliminated the need for grading the 
access roads. Also, Mr. Schecter formed and chaired the Cape Hatteras Water Use Advisory Committee to 
assist in evaluation of the permit application and related long term issues. The Water Use Advisory 
Committee consisted of DCM staff. Division of Environmental Management ("DEM") staff, the Dare County 
Planner, Association representatives and experts, a representative of FOHl, Dr. James Gregory of N.C. State 
University, a National Park Service representative and others. 

17. Additional information was collected to evaluate the Permit Application. More staff site visits 
were made. As recommended by the Advisory Committee, a summer ground water monitoring program was 
conducted by the Groundwater Section of DEM, and vegetation observations were made by DCM staff 
personnel. Additional ground water reports were prepared by Ted Mew of the Groundwater Section of DEM 
and by Ralph Heath for the Association. DCM's review of the permit application determined that the 
proposed development was consistent with the local land-use plan. 

18. The Cape Hatteras Water Use Advisory Committee met again to discuss the additional 
information which had been collected. The Permit Application was reactivated with the revised well alignment 
and sent again to public notice. In early December of 1991, at Mr. Schecter's request, a meeting of DCM 
and DEM staff took place to review the Permit Application and the additional information which had been 
collected. Present at this meeting were Dr. George Everette, Director of DEM, and John Dorney. head of 



7:16 NORTH CAROLINA REGISTER November 16, 1992 1709 



CONTESTED CASE DECISIONS 



the DEM Wetlands and Technical Reviev.' Branch. 

19. After a thorough and detailed review of the permit application, comments submitted thereon 
and the data and information collected during the evaluation of the application. DCM Director Schecter made 
a finding that the Permit should be issued pursuant to N.C.G.S. § 1 13A-120(b). He also determined that the 
permitted activity was consistent with the Coastal Reserve Statute and Rules. On December 18, 1991, a 
permit was issued to the Association by Director Schecter. The permit contained seventeen conditions 
designed to minimize any impacts of the project on the maritime forest, wetlands vegetation and wetland 
suales. On January 14, 1992, an amended Permit No. 152-91 was issued to the Water Association. The 
amended permit contained clarification of some of the conditions in the permit. 

20. Pursuant to N.C.G.S. 1 13A-121 . 1(b), FOHI filed third-party requests for a contested case 
hearing on both the original and amended Permit No. 152-91. By Order dated February 18, 1992, CRC Vice- 
Chairman. T. Erie Haste, Jr., granted Petitioner's request as to certain issues for a contested case hearing on 
the January 14, 1992, permit. FOHI filed its Petition for a Contested Case Hearing on March 20, 1992. 

21 . The purpose of the permitted project is to meet current, unmet water needs of Hatteras Island 
residents and needs projected by Dare County for the reasonably foreseeable future. There is a current, 
significant, unmet need for more water on Hatteras Island. The Association has not been able to sell 
additional water units since December of 1990. The State Division of Environmental Health is concerned that 
the inability of the Association to provide additional water may be creating public health risks as individuals 
attempt to install private wells in areas potentially subject to contamination from septic tanks and salt water. 
In addition, there is concern that the existing well field has been pumped at or near its capacity for the last 
several years. 

22. Water conservation alone will not meet the water needs of Hatteras Island and cannot 
accomplish the project purposes. A reverse osmosis plant, which would process brackish water from deeper 
wells, would take se\'en to ten years to permit and bring on-line. In addition, deeper v^'ells to serve a reverse 
osmosis ("RO") plant v\'ould need to be in the same location as the wells permitted under the subject Permit 
in order to drav. water from the least saline part of the aquifer. RO creates a significant by-product of saline 
waste water that would have to be discharged somewhere. The financial costs of RO. both capital costs and 
operating costs, are approximately three times that of the permitted project. RO uses large amounts of 
electricity and requires a reliable and adequate supply of electrical power which is not currently available to 
Hatteras Island. The physical isolation of Cape Hatteras renders unreliable the electrical power source that 
is currently available. Operator error with the reverse osmosis process can lead to financially catastrophic 
results. 

23. The Association has attempted to purchase land for additional well sites, but because of the 
contro\ersy over the expansion of the AFC in 1987. and because the State of North Carolina currently 
dominates the market place for land purchases on Hatteras Island, private land holders have not been willing 
to sell to the Association any areas suitable for additional well sites. Due to logistics, costs and a number of 
other factors. Dare County is not in a position to pro\'ide public water to the ser\'ice area of the Association 
or to the \illages of Rodanthe, Waxes and Salvo on the northern end of the island, which are not served by 
the Association and which currently have no public water supply. In addition, pilot programs by the Water 
Association on the Ion Exchange method of treating the v\ater from the aquifer appear promising for the 
remo\'al of trihalomethanes ("THMs") and will ha\e the benefit of increasing the capacity of the existing 
treatment plant. 

24. Considering the engineering requirements and all economic costs, there is no practicable 
alternati\e that would accomplish the overall project purposes with less adverse impact on the public 
resources. 

25. Comments were received on the Association's Permit Application from December of 1990 
through the entire year of 1991. Experts in the fields of h\drology. barrier island hydrology, hydrogeology, 
ground water flow modeling, botany and ecology commented to the Director of DCM on the permit issues. 



1 710 7:16 NORTH CAROLINA REGISTER November 16, 1992 



CONTESTED CASE DECISIONS 



The focus of the comments was primarily related to the effects of pumping on wetlands, but comments were 
also received relating to the effect pumping would have on the aquifer. 

26. The aquifer is more than capable of sustaining the rate of water withdrawal for the permitted 
wells. Pumping at the permitted well sites at an average daily rate of 30 gallons per minute per well will 
maintain a sufficient "freshwater dam" to prevent salt water incursion into the freshwater lens. Moving the 
wells farther north away from Jennette Sedge would not only decrease the quality and quantity of water 
produced but more importantly would pose a danger of saltwater encroachment on the sound side of the island. 
Moving the wells to the south of the permitted alignment would increase the production of the wells but would 
more directly impact the wetlands. The "Church Property" which is owned by the Association along the Park 
Service Boundary is almost entirely wetlands and does not appear to have suitable locations for well sites. 
The National Park Service has also been unwilling to allow well sites on the lands it manages. 

27. By the end of 1991, enough data existed to support the conclusion that the proposed wells 
would not have a significant impact on the aquifer. Because of insufficient data and the complex dynamics 
of barrier island aquifers, it is very difficult to model predicted drawdowns with a high degree of accuracy. 
Simplistic models cannot make the fine-tuned determinations which were being sought with regard to site 
specific drawdowns and their impact on particular wetlands. Data collected in the existing Association well 
field between May and September of 1991 indicate that the drawdown in the water table in the immediate 
proximity of the existing wells is somewhere between .3 and 2 feet. There are 44 wells in the existing well 
field. These wells are spaced much closer together and are much closer to the wetlands than the wells 
permitted under Permit 152-91. In addition, the permitted wells will be screened deeper in the aquifer than 
the wells in the existing well field. Therefore, the permitted wells are expected to have even less impact on 
wetlands than the existing wells. 

28. The Cape Hatteras aquifer has been described as both semi-confined and semi-unconfined. 
The aquifer is stratified, as all the experts who testified agree. The result of the stratification of the aquifer 
in Buxton Woods is that the cone of depression in the water table, caused by pumping, is broad and flat. A 
steep cone of depression would have a more significant impact on the water table elevation and on the water 
level in the wetland swales than would a broad, flat cone of depression. 

29. DCM Director Schecter was advised by John Dorney in a memo dated March 22, 1991 that, 
given the natural fluctuations of water in the Buxton Woods wetlands, their gradually sloping bottoms, and 
the seasonal nature of water withdrawals, if drawdown from the pumping were one foot or less, pumping 
would have no long-term effect on the wetlands. Mr. Dorney holds masters degrees in botany, plant ecology 
and civil engineering. Mr. Dorney also advised Mr. Schecter that if the aquifer is semi-confined in the area 
of concern, then the drawdown should be negligible. 

30. On November 18, 1991, Mr. Dorney advised Mr. Schecter that Wells 1, 2 and 3 could be 
safely permitted under the revised well alignment without significant threat to wetlands via drawdown. 

31. On December 5, 1991, the Groundwater Section of DEM advised Mr. Schecter in a memo 
that: "It is essential that natural or ambient hydrologic conditions be determined prior to pumping in the 
area." The Groundwater Section proposed a specific monitoring strategy and set out that strategy in detail. 
It was recommended that at least six months of monitoring data, including the summer peak withdrawal 
season, be collected before the well field becomes operational. The memo further stated that after two years 
of monitoring, data collection requirements will be reviewed, and may be revised depending on an assessment 
of the impact of withdrawals. 

32. On December 16, 1991, Mr. Dorney stated in a memo to Mr. Schecter that the existing data 
and modeling assumptions were too broad for any technically based conclusion that operation of the proposed 
well field will or will not impact the sedge. In the same memo, Mr. Dorney recommended to Mr. Schecter 
that if DCM issued a permit, the permit should contain a monitoring scheme patterned after the Groundwater 
Section's December 5, 1991 memo. Mr. Dorney specifically recommended that; "A performance objective 
of no more than one foot of drawdown of the surficial aquifer at 25 feet (about one-half of the distance from 



7:16 NORTH CAROLINA REGISTER November 16, 1992 1711 



CONTESTED CASE DECISIONS 



most of the wells to the Sedge) should be used." Mr. Dorney recommended that these criteria apply to those 
wells closest to the sedge, namely wells Nos. 4, 5, 6, 7, 8 and 9. 

33. Mr. Dorney further recommended that if the performance objective was not met, the wells 
should be shut down, or alternatively, that withdrawal should be reduced until the drawdown is less than one 
foot. Mr. Ted Mew, Chief Hydrologist of the Groundwater Section, indicated that shutting down a particular 
well would not be effective, but that cutting back on the rate of withdrawal would be a more effective means 
of reducing drawdowns to meet the performance standard. Permit Condition No. 9 requires that if the 
performance standard is exceeded for more than a 48-hour period, the Association must restrict pumping at 
the respective well(s) for a period sufficient to allow recovery of the water table and compliance with the 
performance standard. 

34. The drawdown in the water table near a pumping well decreases logarithmically as the 
distance from the well increases. If drawdown in the water table is one foot at twenty-five feet from a 
pumping well, it would be significantly less fifty feet from the well. The steepness of the drawdown curve 
depends on the characteristics of the aquifer, including vertical hydraulic conductivity, storativity and 
transmisivity. The drawdown curve in this aquifer will be broad and flat. There are different projections as 
to what the exact drawdown will be, but there is no doubt that the drawdown will be significantly less fifty 
feet from the wells than it is at twenty-five feet. 

35. The Permit at issue in this case contains the substance of the monitoring conditions and the 
performance objective proposed by the Division of Environmental Management to Mr. Schecter. This 
required monitoring plan will produce data to determine both the short-term, localized drawdown that occurs 
in the immediate vicinity of the pumping wells during individual pumping cycles and the broader, flatter 
drawdown that occurs seasonally in the water table. The monitoring plan will provide sufficient information 
to enforce the performance standard. 

36. During the permit review process, no questions were ever raised concerning whether any of 
the proposed wells were located outside of the Public Water Supply Well Field AEC. It is difficult to 
precisely locate the AEC boundaries. During the hearing of this case, it was determined, based on a map 
prepared for use at the hearing, that Well No. 1 is approximately 150 feet outside the Cape Hatteras Public 
Water Supply Well Field AEC. This information was not available to Mr. Schecter at the time the Permit 
was issued. However, Well No. 1 is inside the Buxton Woods Coastal Reserve. It was also determined 
during the hearing that Well No. 3 is approximately thirty feet from a wetland. 

37. The disturbance of the Buxton Woods Coastal Reserve by the project as permitted will be de 
minimis . Only about one-third of one percent of the upland forested area in the existing Buxton Woods 
Coastal Reserve will be impacted by the permitted activities. Only about 0.74 acres out of approximately 220 
acres of upland forest will be disturbed. None of the approximately 240 acres of wetlands currently in the 
Coastal Reserve will be disturbed by the permitted activities. In addition, nearly half of the permitted 
activities will take place in an area of Buxton Woods which was clear-cut within the last approximately 20 
years and which now contains much shrub growth. This small amount of disturbance will not have a 
significant impact on the maritime forest or the wetlands and will not lead to fragmentation of the Coastal 
Reserve's natural systems. 

38. Since 1977, the CRC has defined this area as a Public Water Supply Well Field AEC, and 
the Association has been the only provider of water to the public within this area. 

39. The Association has been withdrawing water from the aquifer at the western end of Buxton 
Woods for over 23 years. For the last few years, water has been withdrawn from the existing well field at 
an average annual rate of approximately 600,000 gallons per day. This approximates the safe maximum yield 
of this part of the aquifer. There are 44 wells in the existing well field. These wells are spaced much closer 
together and are much closer to the wetlands than the wells permitted in the Buxton Woods Coastal Reserve. 
In addition, the wells in the existing well field are not screened as deep in the aquifer as the wells permitted 
in Buxton Woods will be. Despite the pumping from the existing well field for over 23 years in close 



1712 7:16 NORTH CAROLINA REGISTER November 16, 1992 



CONTESTED CASE DECISIONS 



proximity to the wetlands, the range of diversity of vegetation in the existing well field sedge is within the 
range of diversity found in Buxton Woods. There is no encroachment of woody vegetation at the edges of 
the existing well field sedge. "Islands" of woody vegetation have grown up in the well field sedge as well 
as the other sedges studied that are outside the influence of any pumping. Water withdrawal from the existing 
well field for a long period of time provides significant and valuable information on what the potential impacts 
of the permitted well field will be. 

40. Permit No. 152-91 contains stringent monitoring conditions and a stringent performance 
standard. The Permit conditions and the performance standard are reasonable, adequate and enforceable 
except it was erroneous not to apply the performance standard to Well No. 3. The performance standard, 
which requires that drawdowns of the water table at a radial distance of 25 ft. from each well not exceed one 
foot below the naturally occurring water table elevation, should explicitly be made to apply to Well No. 3. 
This is because Well No. 3 is located approximately 30 feet from the edge of a wetland. 

41 . Pumping from the nine permitted wells will not significantly affect the aquifer. The proposed 
well field, as permitted and with the performance standard made applicable to Well No. 3, will not have a 
cumulative impact with the existing well field on wetland vegetation. 

42. The Buxton Woods area has experienced over a long period of time a significant degree of 
human disturbance. The area was used for grazing of cattle and man-made fires were set in the woods. 
Roads and trails have existed in the woods for generations. Clear-cutting and timbering has also taken place 
in the woods. Surface hydrology has been altered by drainage ditches. The Association has used the western 
end of Buxton Woods for its existing well field for over 23 years. The clear-cut area appears to be 
revegetating in natural species, and roads and trails quickly revegetate if not maintained. There is no evidence 
of salt spray damage in Buxton Woods due to these activities. 

43. The permitted wells located within the F*ublic Water Supply Well Field AEC can be installed 
and operated in a manner consistent with the preservation of the area in an undeveloped state and consistent 
with the primary uses of the area for research and education. Withdrawal of water from said wells for public 
consumption is a traditional use which is compatible with the primary uses of the Buxton Woods Coastal 
Reserve for research and education. The water-level monitoring, observation of vegetation and other data 
which will be collected about the operation of the permitted wells will have significant scientific and research 
value. 

44. Only a few large growth trees, perhaps as few as three, will need to be cut to provide access 
to the permitted well sites. In addition, it is anticipated that grading will not be necessary. The access roads 
can only be 15 feet wide, and it is anticipated that they will only be approximately 8 feet wide, just large 
enough to allow a four-wheel drive vehicle to pass. DCM staff will mark the final well sites and access 
alignments to insure that disturbance is minimal. The forest canopy will not be significantly disturbed, and 
there will be no salt spray damage because of the distance from the ocean. Short-term impacts from the 
installation of the underground water and electrical lines will be minimal. 

45. The water table elevation data collected by Dr. Gregory of N.C. State University in his study 
of the water table in Buxton Woods was not collected in accordance with standard methods and contains a 
number of anomalies. Dr. Gregory himself cautions against drawing any conclusions from his preliminary 
data. Gregory's study is intended to collect water table data both before and after well field pumping begins. 
Dr. Gregory will also install permanent vegetation plots as part of his work. These plots are for long term 
study to assess the impact, if any, of the water withdrawal on vegetation and will not provide any data in the 
near future. 

46. During the State's acquisition of the lands currently in the Buxton Woods Coastal Reserve, 
it was made clear that future use of small portions of the state-owned property for wells for the public water 
supply system was contemplated as a possible future use. The State has continued to acquire and is currently 
attempting to acquire additional lands for the Buxton Woods Coastal Reserve. The State's contemplated 
acquisitions are intended to eventually include virtually all of the lands designated as the "future well field" 



7:16 NORTH CAROLINA REGISTER November 16, 1992 1713 



CONTESTED CASE DECISIONS 



in the F*ublic Water Supply Well Field AEC. Hence, if the Water Association is to have access to the "future 
well field" for well sites, such access will necessarily have to be on State-owned lands. 

Based upon the evidence presented in this case and the foregoing Findings of Fact, the undersigned 
Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 



1. Because Well Site No. 1 falls outside the Public Water Supply Well Field AEC, which existed 
prior to the creation of the Buxton Woods Coastal Reserve, that particular well's use would be neither 
traditional nor consistent u ith the pui-poses of the Coastal Reser\e. 

2. It was erroneous not to specifically make the performance standard in Permit Condition No. 
9 apply to Well Site No. 3. 

3. Withdrawal of water as permitted, and with the performance standard made applicable to Well 
No. 3, from the Cape Hatteras Public Water Supply Well Field AEC in the Buxton Woods Coastal Reserve 
is a public use, consistent with preservation of the area in an undeveloped state and consistent with its primary 
uses for research and education. The improvements and alterations allowed by the Permit are consistent with 
these uses. 

4. Withdrawal of water as permitted, and uith the performance standard made applicable to Well 
No. 3, from the aquifer in Buxton Woods by the Cape Hatteras Water Association, a private, nonprofit 
corporation, is a public use, consistent with preservation of the Coastal Reserve in a natural state and with 
the primary purposes of research and education, particularly as no other source of public drinking water exists 
in this area. 

5. Withdrawal of water from the Buxton Woods aquifer by the Cape Hatteras Water Association 
from the Cape Hatteras Public Water Supply Well Field AEC, as located within the Buxton Woods Coastal 
Reser\'e, is a traditional use that is compatible with the primary uses of the Reserve for research and 
education. 

6. Withdrawal of water, as permitted and with the perforinance standard made applicable to Well 
No. 3. b\ the Cape Hatteras Water Association from the Cape Hatteras Public Water Supply Well Field AEC 
maintains the Coastal Reserve's essential natural character. 

7. Disturbance or remo\'al of \'egetation, as permitted, is de minimis and is not proscribed by 
15A NCAC 70.0202(6). Alternatively, as applied in this case, 15A NCAC 70.0202(6) is written in such terms 
that the rule is inconsistent with N.C.G.S. 1 13A-129. 1 (b) and ij 1 13A-129.2(e). and thus is void as applied 
in this case because it is not within the statutory authority of the agency and is not reasonably necessan,' to 
enable the agency to fulfill a duty delegated to it by the General Assembly. 



8. There is no basis for finding under N.C.G.S. 1 13A-120(a)(8) that the proposed development, 
as modified by this Recommended Decision, is inconsistent with the applicable State guidelines, laws and 
regulations, including N.C.G.S. I I3A-129. 1 , et seg.. 15A NCAC 7H .0601 and 15A NCAC 70 .OlOO.etseq. 

9. Considering the engineering requirements and all economic costs, there is no practicable 
alternative that would accomplish the overall project purposes with less adverse impact on the public 
resources, and thus there was no basis for finding that the proposed development was inconsistent with 
N.C.G.S. 113A-120(a)(9). 

10. The proposed permitted wells, as modified by this Recommended Decision, and associated 

utilities and access roads or trails, will not contribute to cumulati\e effects that would be inconsistent with 
N.C.G.S. I I3A-I20(ai 1-9. the State guidelines or the local land use plan, and thus there was no basis for 



1714 7:16 NORTH CAROLINA REGISTER November 16, 1992 



CONTESTED CASE DECISIONS 



finding that the proposed development was inconsistent with N.C.G.S. 1 13A-120(a){10). 

11. Except as provided in Conclusions of Law 1 and 2, the wells, associated utilities and access 

roads and trails permitted by Permit No. 152-91 are consistent with all applicable standards in N.C.G.S. 
1 13A-120, the State guidelines and the local land use plan. 

In view of the foregoing Findings of Fact and Conclusions of Law, and as a Recommended Decision 
pursuant to N.C.G.S. 150B-34, the undersigned Administrative Law Judge makes the following: 

RECOMlVIE>fDED DECISION 

It is RECOMMENDED that the North Carolina Coastal Resources Commission decree that: 

1. Permit No. 152-91 is consistent in all respects with all applicable State guidelines. Statutes 
and Rules, including those governing Coastal Reserves, with two specific exceptions: 

a. Well Site No. 1 is outside of the Public Water Supply Well Field AEC, and therefore its use 
is not a traditional use consistent with the purposes of the Coastal Reserve; and 

b. The performance standard in Permit Condition No. 9 should apply to Well Site No. 3 in order 
to ensure its consistency with the Statutes and Rules governing Coastal Reserves. 

2. Considering the engineering requirements and all economic costs, there is no practicable 
alternative that would accomplish the overall project purposes with less adverse impact on the public 
resources, and thus Permit No. 152-90 is consistent with N.C.G.S. 1 13A- 120(a)(9). 

3. The proposed wells, as modified by Paragraph 1 of the decree, will not contribute to 
cumulative impacts that would be inconsistent with N.C.G.S. 1 13A-120(a) 1-9, and thus Permit No. 152-91 
is consistent with N.C.G.S. I 13A-120(a)( 10). 

4. Pre-operationai monitoring over a contiguous summer season should be required prior to the 
permitted wells becoming operational; or at the least, monitoring should be required during the summer of 
1993 up to the date that monitoring began in the summer of 1992. 

5. Except as provided in Paragraph No. 1 of the decree. Permit No. 152-91 is consistent with 
all applicable Statutes and Rules, the standards in N.C.G.S. 1 13A-120, the State guidelines and the local land 
use plan. 

ORDER 

It is hereby ordered that the Agency serve a copy of the final decision on the Office of Administrative 
Hearings, P. O. Drawer 11666, Raleigh, North Carolina 27604, in accordance with North Carolina General 
Statute 150B-36(b). 

NOTICE 

The Agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this Recommended Decision and to present written arguments to those in the 
Agency who would make the final decision. N.C.G.S. 150B-36(a). 

The Agency is required by N.C.G.S. 150B-36(b) to serve a copy of the final decision on all parties 
and to furnish a copy to the parties" attorney of record and to the Office of Administrative Hearings . 



7:16 NORTH CAROLINA REGISTER November 16, 1992 1715 



CONTESTED CASE DECISIONS 



The Agency that will make the final decision in this contested case is the North Carolina Coastal 
Resources Commission. 



This the 19th day of October, 1992. 



( 



Thomas R. West 
Administrative Law Judge 



( 



( 



1716 7:16 NORTH CAROLINA REGISTER November 16, 1992 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 Iw North Carolina Administrative Code (NCAC) has four inajor subdivisions of rules. Two of these, 
titles and chapters, are mandatory. Tlie major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. Tfie other two, 
subchapters and sections are optional subdivisions to he used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 


10 


6 


Council of State 


General Contractors 


12 


7 


Cultural Resources 


Cosmetic Art Examiners 


14 


8 


Elections 


Dental Examiners 


16 


9 


Governor 


Dietetics/Nutrition 


17 


10 


Human Resources 


Electrical Contractors 


18 


11 


Insurance 


Electrolysis 


19 


12 


Justice 


Foresters 


20 


13 


Labor 


Geologists 


21 


14A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 


22 


15A 


Environment, Heaitii, and Natural 


Landscape Architects 


26 




Resources 


Landscape Contractors 


28 


16 


Public Education 


Marital and Family Therapy 


31 


17 


Revenue 


Medical Examiners 


32 


18 


Secretary of State 


Midwifery Joint Committee 


33 


19A 


Transportation 


Mortuary Science 


34 


20 


Treasurer 


Nursing 


36 


*21 


Occupational Licensing Boards 


Nursing Home Administrators 


37 


22 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 


Opticians 


40 


24 


Independent Agencies 


Optometry 


42 


25 


State Personnel 


Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 



Speech & Language Pathologists & Audiologists 64 
Veterinary Medical Board 66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



1717 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1992 - March 1993) 



Pages 



Issue 



1 - 105 1 - April 

106 - 173 2 - April 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490 5 - June 

491 - 625 6 - June 

626 - 790 7 - July 

791 - 902 8 - July 

903 - 965 9 - August 

966 - 1086 10 - August 

1087 - 11 54 11 - September 

1155 - 1253 12 - September 

1254-1350 13 - October 

1351 - 1463 14 - October 

1464 - 1640 15 - November 

1641 - 1720 16 - November 

ADMINISTRATION 

Auxiliary Services. 4 

Motor Fleet Management Division, 794 

AGRICULTURE 

Gasoline and Oil Inspection Board, 336 

Pesticide Board, 1276 

Plant Industry, 904 

Structural Pest Control Committee, 332 

Veterinary Division, 342 

CO.MML'Niri' COLLEGES 

Community Colleges. 1535 
General Provisions. 1531 
.Vliscellaneous Programs, 1598 

CULTURAL RESOURCES 

I'.S.S. Battleship Commission, 911 

ECONOMIC AND COMML^TTi' DEVELOPMENT 

Banking Commission, 629. 1467 
Community Assistance, 909. 968 
Departmental Rules. 801 

ENVIRONMENT. HEALTH. AND NATURAL RESOURCES 

Adult Health, 1199 

Coastal Managemem, 211, 655. 1098, 1507 

Departmental Rules, 826 

En\'ironmental Health, 223 

Environmental Management. 190. 416, 500, 644, 830, 1013, 1487 

Go\ernor"s Waste Management Board, 564, 920, 1197 

Health; Epidemiology, 140, 1212 



1718 



7:16 



NORTH CAROLINA REGISTER 



November 16, 1992 



CUMULATIVE INDEX 



Health: Personal Health, 1217 

Health Services, 52, 659, 1174 

Marine Fisheries, 530 

NPDES Permits Notices, 1, 107 

Radiation Protection, 136, 1520 

Sedimentation Control, 920 

Vital Records, 565 

Wildlife Resources Commission, 28, 133, 408, 449, 551, 921, 1299, 1414, 1658 

Wildlife Resources Commission Proclamation, 176 

FINAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406, 493, 628, 793, 966, 1090, 1275, 1465, 1644 

GENERAL STATUTES 

Chapter I50B, 1254 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 401, 491, 626, 791, 903, 1087, 1155, 1351, 1464, 1641 

HUMAN RESOURCES 

Aging, Division of, 121, 346 

Day Care Rules, 123 

Economic Opportunity, 5 

Facility Services, 111, 177, 496, 634, 980, 1352, 1647 

Medical Assistance, 4, 415, 496, 816, 989, 1156, 1295, 1391, 1649 ' 

Mental Health, Developmental Disabilities and Substance Abuse Services, HI, 297, 409, 809, 1092, 1276 ' 

Social Services Commission, 183, 911, 1471 

INDEPENDENT AGENCIES 

Housing Finance Agency, 450, 576, 928, 1219 

INSURANCE 

Actuarial Services Division, 1411 

Agent Services Division, 1410 

Consumer Services Division, 125, 1157 

Departmental Rules, 7, 1095, 1405 

Engineering and Building Codes, 19, 643 

Financial Evaluation Division, 1162 

Fire and Rescue Services Division, 17, 1406 

Hearings Division, 124, 1096 

Life and Health Division, 22, 347, 1167 

Medical Database Commission, 1650 

Property and Casualty Division, 20 

Seniors' Health Insurance Information Program, 132 

JUSTICE 

Alarm Systems Licensing Board, 27, 189, 643, 919, 1414, 1486 

Criminal Information, 1097 

General Statutes Commission, 353 

Private Protective Services, 918 

Sheriffs Education and Training, 990 

State Bureau of Investigation, 188, 499, 1413 

LICENSING BOARDS 

Architecture, 1 I I I 



7:16 NORTH CAROLINA REGISTER November 16, 1992 1719 



CUMULATIVE INDEX 



Certified Public Accountant Examiners. 355 

Chiropractic Examiners, 1416 

Cosmetic Art Examiners. 360. 922. 1669 

Dietetics/Nutrition, 923 

Electrolysis Examiners. 69. 700 

Medical Examiners. 1304. 1417 

Nursing, Board of. 232, 700, 1528 

Pharmac_\', Board of. 1418 

Professional Engineers and Land Surveyors. 566 

Speech and Language and Pathologists and Audiologists, 705 

LIST OF RULES CODIFIED 

List of Rules Codified. 72. 362. 452. 584, 1671 

PUBLIC EDUCATION 

Departmental Rules. 1108 

Elementary and Secondary, 852. 1108. 1666 

REVEXUT 

License and Excise Tax. 712 
Motor Fuels Tax, 361 

STATE PERSONTsEL 

Office of State Personnel. 237, 705. 1113, 1419 

TAX RE\TE\^ BOARD 

Orders of Tax Review, 494 

TR.\XSPORTATION 

Highways. Division of. 228, 856. 1062. 1110. 1669 
Motor Vehicles. Division of, 68, 142 



( 



( 



( 



1720 7:16 SORTH CAROLINA REGISTER November 16, 1992 



NORTH CAROLINA ADMINISTRATIVE CODE 



Tlw fiill publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the fiill publication including supplements can be 
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